Milpitas City Council
June 21, 2022

SOFTWARE AS A SERVICE AGREEMENT

BETWEEN THE

CITY OF MILPITAS AND HIDERLITER DE LLAMAS AND ASSOCIATES

_____________________________________________________________

This Software as a Service Agreement (hereinafter referred to as “Agreement”) is entered into as of this day of_________________ , (the " Effective Date") by and between the CITY OF MILPITAS, a California municipal corporation (“City”), and Hinderliter De Llamas and Associates, a California corporation having a principal place of business at 120 S. State College Blvd., Suite 200, Brea, CA 92820 (“Provider”).

RECITALS

A. Provider is the owner of its proprietary software that the City has selected to use for the City’s Business License and Transient Occupancy Tax Applications .

B. Provider represents and warrants that it is qualified to provide the Software as a Service Application and perform the Services as set forth under this Agreement.

C. Provider desires to grant to City and City desires to obtain from Provider a nonexclusive license to use the Software as a Service Application and obtain the services in accordance with the terms and on the conditions set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Use of the SaaS Software. Provider shall provide City with the Software as a Service Application and services, which are described in the Provider’s Proposal and attached hereto as Exhibit “ A” and incorporated herein by reference (“SaaS Software”). The specifications, performance and functionality of the SaaS Software shall comply in all respects with the requirements set forth in the Provider Proposal and any documentation for the SaaS Software (“Functional Requirements”). Subject to the terms and conditions of this Agreement, Provider hereby grants City and Authorized Users a renewable, irrevocable (except as set forth herein), non-exclusive, royalty-free, and worldwide license to access, display, and execute the SaaS Software and related documentation during the Term of this Agreement and any renewals thereof, if any.

2. Services. Provider shall further provide City with implementation, project management, and training services in connection with the implementation of the SaaS Software as further described in Exhibit “A” (“Services”).

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3. Compensation.
a. Subject to paragraph 3(b) below, the City shall pay for the SaaS Software, including the related Services, in accordance with the schedule of costs set forth in Exhibit “A.” b. In no event shall the total amount paid for the SaaS Software and Services, rendered by Provider under this Agreement exceed the sum of One Hundred Twenty-Three Thousand Six Hundred Ninety-Nine Dollars and Ninety-Three Cents ($123,699.93) unless there is a change in the scope of the SaaS Software and Services and such change is reflected in the execution of a writte n amendment pursuant to Section 8 of this Agreement.
c. Payment to Provider shall be considered as full compensation for all personnel, materials, supplies, and equipment used in performing the Services. d. City’s failure to discover or object to any unsatisfactory work or billing prior to payment will not constitute a waiver of City’s right to request Provider to correct such work or billings or seek any other legal remedy.

4. Term and Termination.
a. Term. The term of this Agreement shall commence on July 1, 2022 and expire on June 30, 2027, unless earlier terminated as otherwise provided herein. b. Options to Renew. The City has Zero options to renew the Agreement for a period of Zero each. The City may extend this Agreement beyond the expiration date by exercising an option at the City’s sole and absolute discretion and by modifying this Agreement as provided in Section 8.
c. Termination
(i) Termination for Breach by Either Party. Either party may terminate this Agreement upon written notice to the other party, if the other party breaches a material term of this Agreement and such breach remains uncured for thirty (30) days after the other party’s receipt of such notice. (ii) Termination for Non-Appropriation. City’s payment obligation under this Agreement extends only to funds appropriated annually by City’s governing body for the purpose of this Agreement. For each succeeding fiscal period covered by this Agreement, City’s applicable department responsible for this Agreement agrees to include in its budget request appropriations sufficient to cover the annual financial obligations under this Agreement. However, City’s governing body has no obligation to make appropriations for the Agreement in lieu of appropriations for new or other contracts. If City is appropriated insufficient funds to continue annual payments under this Agreement, City may terminate this Agreement by giving Provider not less than thirty (30) days’ prior written no tice. Upon termination under this paragraph, Provider shall be entitled to compensation for all SaaS Software Services rendered prior to the effective termination date. Provider’s assumption of risk of possible non - appropriation is a part of the consideration for the Agreement. This Section controls against any and all other provisions of the Agreement. 298
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(iii) Termination for Convenience. City may terminate this Agreement at any time without cause upon ninety (90) days’ prior written notice to Provider.

No refund of amounts paid by City shall be provided upon termination for convenience.

d. Effect of Termination or Expiration.
(i) City will pay Provider all amounts payable hereunder as of the termination or expiration date or Provider shall provide a prorated refund of amounts paid by City where termination occurs for breach by Provider prior to the first twelve (12) months of the Term;
(ii) all rights and licenses granted hereunder to City (as well as all rights granted to any Authorized Users of City) will immediately cease, including but not limited to all use of the SaaS Software; and (iii) City will, upon written request of Provider, either return to Provider or provide Provider with written certification of the destruction of, all documents, computer files and other materials containing any Confidential Information of Provider that are in City’s possession or control. (iv) Return of Data. Upon expiration or termination of this Agreement for any reason, and regardless of whether there is any dispute relating to the Agreement, Provider will provide City with all City Data in Excel or SQL Server format. Thereafter, upon written instruction of City, Provider and any of its third-party contractors shall completely destroy or erase all copies of City Data in any form.

5. Maintenance and Support Services. Following the warranty period for the SaaS Software, Provider has agreed to make maintenance and support services for the SaaS Software available to City in accordance with the terms of the Provider Services, which is attached hereto as Exhibit “A.” The SaaS Software Support and Maintenance Provisions contain mutually agreed upon pricing for such services, which pricing shall remain in effect for so long as City makes the payments set forth in Exhibit “A.”

6. Data and Security
a. Ownership of City Data. “City Data” means all data, information, content and other materials stored or transmitted by City and any Authorized User through the SaaS Services. The Parties agree that as between them, all rights, including all intellectual property rights, in and to the City Data and any derivative works of the City Data is the exclusive property of the City. City shall have access to City Data 24 -hours a day, 7 days a week. Provider warrants that City shall be able to extract City Data from the SaaS Application on demand, but no later than 24-hours of City’s request, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees to Provider). Provider shall retain and preserve City Data in accordance with the City’s instruction and requests, including without limitation any retention schedules and/or litigation hold orders provided by the City to Provider, independent of where the City Data is stored. 299
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b. Use of City Data . Provider agrees to hold City Data received from or created on behalf of the City in strictest confidence. Provider shall not use or disclose City’s Data except as permitted or required by the Agreement or as otherwise authorized in writing by the City. Access to City’s Confidential Information must be strictly controlled and limited to Provider’s staff assigned to this project on a need -to-know basis only. Provider is provided a limited non-exclusive license to use the City Data solely for performing its obligations under the Agreement and not for Provider’s own purposes or later use. Nothing herein shall be construed to confer any license or right to the City Data, including user tracking w ithin the system, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to any third-party. Unauthorized use of City Data by Provider, subcontractors or other third- parties is prohibited. For purpose of this requirement, the phrase “unauthorized use” means the data mining or processing of data, stored or transmitted by the service, for unrelated commercial purposes, advertising or advertising -related purposes, or for any purpose other than security or service delivery analysis that is not explicitly authorized.
c. Data Security. To prevent unauthorized access to City Data or City Confidential Information, Provider shall establish and maintain a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (i) ensure the security and confidentiality of the City Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the City Data; (iii) protect against unauthorized disclosure, access to, or use of the City Data; (iv) ensure the proper disposal of City Data; and, (v) ensure that all of Provider’s employees, agents, and subcontractors, if any, comply with all of the foregoing.
d. Payment Card Industry (“PCI”) Requirements. Providers providing services and products that handle, transmit or store cardholder data, are subject to the following requirements: Provider is responsible for the security of cardholder data possessed by it or its third party transaction processor (if any). Provider shall comply with (or if applicable, shall ensure its third party transaction processor complies with) and maintain all applicable PCI DSS requirements. Provider (or its third party transaction processor, if applicable) shall submit to the City on an annual basis a PCI DSS Attestation of Compliance and/or Report of Compliance promptly upon City's reasonable request.
e. Data Breach; Loss of City Data. “Data Breach” means any access, destruction, loss, theft, use, modification or disclosure of City Data by an unauthorized party or that is in violation of the Agreement terms and/or applicable local, state or federal law. “SaaS Software Error” means any failure of SaaS Software to conform in all material respects to the requirem ents of this Agreement or Provider’s published specifications or documentation. In the event of any Data Breach, SaaS Software Error, omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of City Data or the physical, technical, administrative, or organizational safeguards put in place by Provider that relate to the protection of the security, confidentiality, or integrity of City Data, Provider shall, as applicable:
(i) Notify Ci ty immediately following discovery, but no later than twenty-four (24) hours, of becoming aware of such occu rrence or suspected occurrence;
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(ii) Keep the City informed regularly of the progress of its investigation; (iii) As rapidly as circumstances permit, apply appropriate resources to remedy the breach condition, investigate, document, restore City service(s) as directed by the City, and undertake appropriate response activities to correct, remediate, or to mitigate potential damage;
(iv) In the case of personally ident ifiable information (PII) or protected health information (PHI), at City’s sole election, (a) notify the affected individuals as soon as practicable but no later than is required to comply with applicable law, or, in the absence of any legally required not ification period, within five (5) calendar days of the occurrence; or, (b) reimburse City for any costs in notifying the affected individuals . Provider’s responsibility for the costs of providing such notifications shall not be limited by any disclaimer or limitation of liability in the Agreement; (v) Perform or take any other actions required to comply with applicable law as a result of the occurrence.

7. Contract Documents . The following documents shall govern the performance of the Scope of Work and the terms and conditions for the provision of the SaaS Software and Services (collectively, the “Contract Documents”):
a. This Agreement;
b. Provider Proposal (Exhibit “A”); and
c. City Insurance Requirements (Exhibit “B”).

In the event of any conflict between the terms and conditions of the Contract Documents, the Contract Documents shall govern in accordance with the foregoing order of priority with this Agreement acting as the master agreement. No “click to accept” agreement may be required for the City and/or Authorized Users’ access to the SaaS Services.

8. Additional Work; Amendments. If changes in the Project and the Contract Documents seem merited by Provider or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Provider with a statement of the estimated changes in the Provider Proposal. An amendment to the Agreement shall be prepared by the City and executed by bo th parties before any change becomes binding upon City. Provider acknowledges that any material amendment to the Contract Documents, particularly with respect to the schedule of charges in the Provider Proposal, may be subject to approval by the City Council. Such amendment shall not render ineffective or invalidate unaffected portions of the Contract Documents.

9. Maintenance of Records . Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Provider and made available at all reasonable times during the Agreement period and for four (4) years from the date of final payment under the Agreement for inspection by the City.

10. Notice to Proceed . The obligations of Provider to commence performance shall by triggered by Provider’s receipt of notice from the City to proceed. Thereafter, Provider 301
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shall proceed in accordance with the Project Schedule. The Notice to Proceed shall set forth the date of commencement of the Project Schedule.

11. Delays in Performance.
a. Neither the City nor Provider shall be considered in default of the Contract Documents for delays in performance caused by circumstances beyond the reasonable control of the non -performing party. For purposes of this Agreement, such circumstances include but are not limited to : abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.
b. Should such circ umstances occur, the non -performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance under the Contract Documents. It is not intended by the parties that any such delay shall extend for a period in excess of sixty (60) days.

12. Confidentiality. Provider understands and agrees that, in the performance of the work or services under this A greement may involve access to City Data that is Confidential Information. Provider agrees to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third -parties other than its employees, agents, or authorized subcontractors who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. Provider and any subcontractors or agents shall use Confidential Information only in accordance with all applicable local, state and federal laws restricting the access, use and disclosure of Confidential Information and only as necessary in the performance of this Agreement. Provider’s failure to comply with any requirements of local, state or federal laws restricting access, use and disclosure of Confidential Information shall be deemed a material breach of this Agreement, for which City may terminate the Agreement.

Provider agrees to advise and require its respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.

Provider will not disclose any Confidential Information of City except as compelled by a court or administrative body or required by any law or regulation. Provider will give notice if any disclosure request is received for City’s Confidential Information, so City may file an objection with the relevant court or administrative body.

13. Compliance with Law.
a. In carrying out its obligations under the Contract Documents, Provider shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements and requirements for verification of employees' legal right to work in the United States. b. If required, Provider shall assist the City, as requested, in obtaining and maintaining all permits required of Provider by federal, state and local regulatory agencies. c. Provider is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” 302
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projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Provider agrees to fully comply with such Prevailing Wage Laws. Provider shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Provider and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Section 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code Section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
d. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Provider and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Provider shall maintain registration for the duration of the Agreement and require the same of any subconsultants, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Provider’s sole responsibility to comply with all applicable registration and labor compliance requirements. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. e. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Provider’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Provider or any subconsultant that affect Provider’s performance of Services, including any delay, shall be Provider’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Provider caused delay and shall not be compensable by the City. Provider shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Provider or any subconsultant.

14. Warranty
a. SaaS Software Warranty. Provider warrants that the SaaS Software will conform in all material respects to the Functional Requirements for a period of twenty-four (24) months (“Warranty Period”) following the date upon which the SaaS Software has completed user acceptance testing and is placed in use by City in a live 303
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production environment (“Go-Live”). Provider agrees to correct or replace, at no charge, any nonconformity of which it receives notice during the Warranty Period.

In addition, Provider warrants that any customization and/or error correction to the SaaS Software will conform in all material respects to the Functional Requirements.

This warranty is void if the City or any other th ird party intentionally changes or modifies the SaaS Software without the permission of Provider. b. Malware. Provider warrants that the SaaS Software shall not contain any lock, counter, CPU reference, virus, worm, or other malware or device capable of halting operations or erasing or altering data or programs. Provider further warrants that neither it, nor its agents, empl oyees, or subc ontractors shall insert any shutdown device following delivery of the SaaS Software (or any hardware). c. Service Warranty. Provider warrants that all Services provided under this Agreement will be performed in a professional, competent and workmanlike manner in accordance with the Project Schedule . City shall notify Provider in writing of any breach of this warranty no later than ninety (90) days following Go- Live. Provider shall further provide a sufficient number of properly trained and competent staff to carry out the Services in a skilled and professional manner consistent with the best practices in the SaaS Software industry and in compliance with the Project Schedule.

d. Remedies. Provider covenants that it will make corrections of program malfunctions or errors which are reported in writing to Provider during the Warranty Period and which are necessary for the SaaS Software to conform to the warranties set forth in Section 14 of this Agreement . City agrees to allow Provider the opportunity to make repeated efforts within a thirty (30) day time period to correct programming errors or malfunctions as warranted in this Agreement. Provider agrees that program malfunctions that result in an inoperable system resulting in a financial impact to the City, or inefficient work -around, will be given its highest priority with the problem corrected as soon as practicably possible, consistent with a high priority item under the SaaS Software Support and Maintenance Provisions, using its most experienced and kno wledgeable resources. Provider will strive to have any and all malfunctions resolved within no more than five calendar days.

15. Acceptance Testing; Final Acceptance. All SaaS Software and Services shall be subject to acceptance testing by City to verify, to its reasonable satisfaction, that each deliverable conforms to the requirements of a particular phase or milestone as set forth in the Exhibit “A” hereto or with respect to the SaaS Software , that it conforms to the Functional Requirements in all material respects and does not contain errors. City and Provider will agree on a reasonable testing methodology for the SaaS Software. Acceptance testing will not begin for any deliverable until sufficient data, as reasonably determined by City, has been converted and loaded into the SaaS Software or component thereof to enable City to test the functionality of the SaaS Software or any component thereof in a test environment that approximates a live production environment. If City determines that any SaaS Software deliverable or Services do not conform with the foregoing requirements, City shall promptly deliver to Provider a notice of non-conformity, and Provider shall work diligently to correct all nonconformities free of charge to City by issuing one or more error corrections or re-performing the defective Services. Each error correction shall be subject 304
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to additional acceptance testing by City. Notwithstanding the acceptance of any deliverable by City, such deliverable shall remain subject to the warranty obligations of Provider for the entire Warranty Period. “Final Acceptance” shall occur ninety (90) days after Go-Live provided that the SaaS Software is operating properly in accordance with all of the Functional Requirements and there are no material warranty issues that adversely impact the ability of City to operate the SaaS Software.

16. Assignment and Sub contractors. Provider shall not subcontract, assign or transfer this Agreement or any rights under or interest in the Contract Documents without the written consent of the City, which may be withheld for any reason at the sole discretion of the City. Nothing contained herein shall prevent Provider from employing independent contractors, as well as employees, to provide Services as Provider may deem appropriate, provided, however, that Provider shall remain fully responsible for such independent contractors.

17. Independent Contractor.
a. Provider enters into this Agreement as an independent contractor and not as an employee of the City. The Provider shall have no power or authority by this Agreement to bind the City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or ret ained by the Provider are employees, agents, contractors or subcontractors of the Provider and not of the City. The City shall not be obligated in any way to pay any wage claims or other claims made against Provider by any such employees, agents, contractors subcontractors, or any other person resulting from performance of this Agreement. b. Provider agrees it has satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Agreement is based on such independent investigation and research.

18. Integration. The Contract Documents represent the entire understanding of the City and Provider as to those matters contained herein, and supersedes and cancels any prior oral or written understanding, promises or representations with respect to those matters covered hereunder. This Agreement may not be modified or altered except in writing signed by both parties hereto. This is an integrated Agreement.

19. Title to SaaS Software. Provider represents and warrants that it is the sole owner of the SaaS Software or, if not the owner, that it has received all legally required authorizations from the owner to license the SaaS Software as contemplated herein, has the full power to grant the rights required by this Agreement, and that neither the SaaS Software, nor its use in accordance with the Contract Documents, will violate or infringe upon any patent, copyright, trade secret, or any other property rights of another person or City.

20. Infringement and Performance Breach Remedies. If it is claimed that any work furnished by Provider, whether first d eveloped by Provider for the City or not, infringes any intellectual property right or is otherwise unlawful, Provider agrees to defend or settle any such claim or suit at Provider’s expense and to indemnify and hold the City harmless from any losses, damages or harm, including attorney’s fees and legal expenses, i ncurred as a result of such claim. Without the City’s prior written approval, Provider shall not accept any liability on the City’s behalf for the infringement, nor shall Provider reach a settlement that from the City perspective impairs the value or usefulness of the work that is the subject 305
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of the infringement clai m. Provider will al so pay all d amages and costs that by fin al judgment, settlement or other resolution are assessed against the City due to such alleged or proven infringement and reimburse the City for any direct damages suffered by the City as a result of t he infringement claim, including but not limited to attorney’s fees. Should Provider find, or be found, to have infringed on any intellectual property rights, Provider will procure; (i) a right for the City to continue using the applicable SaaS Software or Work Product, (ii) a solution to mitigate the infringement, or (iii) a product to replace the infringing product that provides the functionality and complies with the specifications contained in the Contract Documents . The City shall not incur any additional costs related to the aforementioned remedies.

21. Indemnification. Provider shall indemnify, defend (with counsel approved by City), and hold harmless the City, its officers, officials, agents, and employees (collectively, the “Indemnitees”) from and against any and all claims, damages, demands, liability, costs, losses and expenses, (all of the foregoing collectively “Claims”), including without limitation court costs and reasonable attorneys’ fees, which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, Provider’s performance pursuant to this Agreement, including without limitation, Claims arising on account of injury to or death of persons or damage to property.

City does not and shall not waive any rights against Provider which City may have pursuant to this Section because of Provider’s provision of insurance policies required by this Agreement. Provider’s obligations to defend and indemnify the City shall survive the expiration or termination of this Agreement. Provider shall not be required to indemnify City for Claims arising from the sole negligence or willful misconduct of the Indemnitees.

22. Conflicts of Interest.
a. Provider covenants that neither it, nor any of its employees, agents, contractors, or subcontractors has any present interest, nor shall they acquire any interest, direct or indirect, in the subject of the Agreement, nor any other interest which would conflict in any manner or degree with the performance of its Services hereunder. b. Provider shall make all disclosures required by the City’s conflict of interest code in accordance with the category designated by the City, unless the City’s Contract Administrator determines in writing that Provider’s duties are more limited in scope than is warranted by the category designated by the City code and that a narrower disclosure category should apply. Provider also agrees to make disclosure in compliance with the City conflict of interest code if, at any time after the execution of this Agreement, City determines and notifies Provider in writing that Provider’s duties under this Agreement warrant greater disclosure by Provider than was originally contemplated. Provider shall make disclosures in the time, place and manner set forth in the conflict of interest code and as directed by the City.

23. Liability of Provider. Provider shall be responsible for performing the services under this Agreement in a manner which is consistent with the generally-accepted standards of the Provider’s profession and shall be liable for its own negligence and the negligent acts of its employees, agents, contractors and subcontractors. The City shall have no right of control over the manner in which the work is to be done but only as to its outcome, and shall not be charged with the responsibility of preventing risk to Provider or its employees, agents, contractors or subcontractors.
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24. Insurance.
a. Provider will comply with the “Insurance Requirements” of City which are attached hereto as Exhibit “B” and included as a part of this Agreement. b. No limitation on liability contained in the Contract Documents shall apply to any third party claim for personal injury or wrongful death arising from the negligent acts or willful misconduct of either party, its agents or assigns. Furthermo re, no limitation on liability applicable to Provider shall apply to any third party claim that the SaaS Software infringes upon the intellectual property rights of another party, nor to the obligation of Provider to deliver the SaaS Software and Services in accordance with the Scope of Work and Provider’s warranty obligations.

25. Laws, Venue, and Attorneys’ Fees. This Agreement shall be governed by the laws of the State of California. Any litigation regarding this Agreement or its contents shall be filed in a state or federal court situated in the County of Santa Clara, State of California.

26. Documents. Provider shall deliver to City no less than one (1) full set of documentation, manuals, and training materials for the SaaS Software. City shall have the right to copy such documents and materials for its own internal use of the SaaS Software.

27. Project Manager. Provider shall assign George Bonnin as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

28. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered in person or sent via commercial overnight delivery or by certified mail, addressed to each party at the address set forth below or such other address for which a party has given notice in accordance with this section . Notice will be effective upon receipt, or within five (5) days of delivery.

City:

City of Milpitas
455 E. Calaveras Blvd.

Milpitas, California 95035
Attn: City Manager
Provider:

Hinderliter De Llamas and Associates
120 S. State College Blvd., Suite 200
Brea, CA 92820
Attn: George Bonnin

29. City Not Obligated to Third Parties. City shall not be obligated or liable for payment hereunder to any party other than the Provider.

30. Non-Discrimination. Provider shall not discriminate in any way against any person on the basis of race, color, religious creed, national origin, ancestry, sex, sexual orientation, age, physical handicap, medical condition or marital status in connection with, or related to, the performance of this Agreement.

31. Prohibited Interests. Provider maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Provider, to solicit or secure this Agreement. Further, Provider warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working 307
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solely for Provider, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the aw ard or making of this Agreement.

For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

32. Unauthorized Aliens. Provider hereby promises and agrees to comply with all the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. § 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Provider so employ such unauthorized aliens for performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Provider hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.

33. Wage Theft Prevention.
a. Provider, and any subcontractor it employs to complete Services under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance. b. BY SIGNING THIS AGREEMENT, PROVIDER AFFIRMS

THAT IT HAS DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS

FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN THE FIVE (5) YEARS PRIOR TO EXECUTING THIS AGREEMENT THAT

PROVIDER OR ITS SUBCONTRACTORS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. PROVIDER FURTHER AFFIRMS THAT IT OR ITS

SUBCONTRACTOR(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,

DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS NOT

BEEN FULLY SATISFIED, PROVIDER AFFIRMS THAT IT OR ITS

SUBCONTRACTOR(S) IS CURRENTLY SATISFYING SAID JUDGMENT,

DECISION OR ORDER THROUGH A PAYMENT OR ALTERNATIVE PLAN

APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGENCY AND

THAT PROVIDER OR ITS SUBCONTRACTOR(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.
c. If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that Provider or a subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or Provider learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Provider shall inform the City no more than fif teen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order. Provider or its subcontractor(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Provider or its 308
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subcontractor is subject to a payment or other alternative plan, the Provider or its subcontractor shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied. d. For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appea ls have been exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.
e. Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law. f. Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E. Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.

34. Severability. The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.

35. Counterparts. This Agreement and any exhibits, amendments or renewals hereto may be executed in a number of counterparts, and each counterpart signature, when taken with the other counte rpart signatures, is treated as if executed upon one orig inal of this Agreement or any amendment or renewal. A signature by a ny party to this Agreement provided by facsimile or electronic mail is binding upon that party as if it were the original.

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

CITY OF MILPITAS
Approved By:

Steven G. McHarris, City Manager

Date

Approved As To Form:

Michael Mutalipassi, City Attorney

Approved:

Lauren Lai, CPA, MPA
Finance Director / Risk Manager

HIDERLITER DE LLAMAS AND

ASSOCIATES

Signature

Name

Title

Date

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EXHIBIT A

SAAS SOFTWARE SERVICES

The following provides the scope of Services and Fees for Consultant’s local tax software maintenance services for the City’s Business License Tax and Transient Occupancy Tax Applications. For purposes of this Exhibit A, Provider is referred to as “Consultant” and City is referred to as “Client.”

SERVICES
Consultant will provide the following Maintenance Services relative to Consultant’s local tax software solution.

1. Software Support

1.1. Client Support - Consultant will provide Client’s users no charge support by telephone, email and the web during the term of this Agreement. In the United States support is available as follows:

For customer support between the hours of 8:00 am and 5:00 pm Pacific time, Monday through Friday, email [email protected] or call (909) 861-4335 and ask for software support. For urgent off hours support before 8:00 am or after 5:00 pm Pacific time, Monday through Friday (or anytime Saturday), email [email protected] and Consultant’s on call support personnel will be notified.

Please only include your name, agency and contact # in emails to [email protected]. You will be contacted as soon as possible.

1.2. Response Time – In the event that Client encounters an error and/or malfunction whereby the software does not conform to expected behavior in accordance with the software design, Consultant will assign one of the following severity levels and render support services in a timely manner consistent with the urgency of the situation.

1.2.1. Severity Level 1 – a critical problem has been encountered such that the software is essentially inoperable and without a reasonable workaround. Consultant will respond within one (1) business hour to diagnose the problem. A response is defined as an email or call to the Client’s designated support contact. Consultant and Client will work diligently and continuously to correct the problem as quickly as possible.

1.2.2. Severity Level 2 – a problem has been encountered that does not prevent use of the software, but the software is not operating correctly. Consultant will diagnose the problem within 48 hours and advise Client of any available work-around. Upon Consultant’s confirmation that the software is not operating correctly, Consultant will provide a software update to repair the defect and confirm with Client that the update resolved the issue.

1.2.3. Severity Level 3 – a minor problem has been encountered. The software is usable but could be improved by correction of a minor defect or addition of a usability enhancement. HdL will assess the request within fifteen (15) business days and, depending on priorities, schedule a software update for a future release, advise City that the request will not be implemented, or offer the option of implementing the request as a custom software enhancement at additional cost.

1.3. Support Policy Regarding Reports - Consultant will assist with modifications to reports as needed during the term of this agreement. Typical report modifications require 7 to 10 business days to complete. Very complex reports or reports required in a very short time frame may incur development costs, in which case an estimate will be provided for approval before the work is begun.

1.4. Software Upgrades - Except to the extent that upgrades of the software include new modules or features not previously offered as part of the software as of the date hereof, Client is entitled to upgrades of the software within the terms of this Agreement. Though rare, additional costs may 311
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apply depending on the extent of the upgrade. Potential additional costs include training, consulting, configuration, or other requested services.

1.5. Outside Connections to Consultant Database – Consultant’s software relies on the integrity of the database to operate properly. As such, it is critical that any outside connection to the database be implemented with Consultant’s full knowledge and participation. Only “read only” connections will be established to Consultant’s database. No modifications will be made to the Consultant database, including database/table design and data content. Any repair work necessary due to violations of the above items will not be covered by the Software Use Fee, and as such will be billable to the client on a time and material basis. The Client shall contact Consultant for instructions if any added functionality is required, including reading additional data or writing to the Consultant database.

1.6. Out of Scope Support – Client agrees to pay additional hourly fees according to Consultant’s then current hourly rates if the Client desires Consultant’s assistance for matters which are not caused by any defects in Consultant’s software.

1.7. Software Hosting Services – Consultant’s hosting services offload the majority of IT concerns to Consultant’s hosting team; including system upgrades, hardware and software maintenance, database management, and disaster recovery. Client will be responsible for maintaining its workstations and a reliable internet connection. Consultant will handle the rest. Website functionality will be hosted using a Client specific sub-domain on Consultant’s special purpose hdlgov.com domain.

1.7.1. Workstation Specifications – Workstations will access the software through a r emote application session with Consultant’s hosting service. All workstations require 4+GB Memory, 1280x1024 screen resolution, and MS Windows 7/8/10 operating system.

1.7.2. Network Specifications – Consultant’s hosted service requires reliable, high spe ed internet connectivity. High-speed local area network connections are always helpful, but the service will also run without difficulty over slower WAN connections such as T1 or mobile broadband.

1.7.3. Printer Specifications - The software is designed to work with laser printers. A PCL compliant laser printer is recommended. Each make and model of printer has different drivers and therefore has slightly different results when printing. We design forms/reports using HP LaserJet printers.

2. Online Payment Processing – Consultant’s software is bundled with PCI compliant payment gateway services powered by FIS Global, which supports both credit card and eCheck transactions.

If a different payment gateway is required there will be a programming cost to establish the custom payment gateway integration.

2.1. Payment Processing - Consultant shall provide its Services to support payments remitted to Client. Consultant shall transmit transactions for authorization and settlement through Consultant’s certified payment processor. Funds for transactions processed by Consultant hereunder shall be submitted to Client’s designated bank account as follows: (i) no more than two (2) business banking days after all Transactions (other than electronic Check Transactions) that are successfully processed prior to 5:00 p.m. ET on each business banking day (e.g., a Transaction authorized at 2:00 p.m. ET on Monday will be submitted on Wednesday; a Transaction successfully processed at 8:00 p.m. ET on Monday will be submitted on Thursday); and (ii) no more than five (5) business banking days for all electronic Check Transactions that are successfully processed prior to 5:00 p.m. ET on each business banking day. Consultant makes no representation or warranty as to when funds will be made available by Client’s bank.

2.2. Support - Consultant shall provide Client with payment processing related customer service as needed. Client shall timely report any problems encountered with the service. Consultant shall promptly respond to each report problem based on its severity, the impact on Client’s operations and the effect on the service. Consultant shall either resolve the problem or provide Client with the information needed to enable the Client to resolve it.
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2.3. Transaction Errors - Consultant’s sole responsibility for any Transaction error or reversed Transaction is to determine whether the result indicates a problem with Consultant’s service and, if necessary, reprocess and resubmit the Transaction without additional charge. In the event that a Transaction is reversed or refunded to any Customer of Client, for any reason, Consultant may offset such amount against funds remitted to Client, or invoice Client for such amount, at Consultant’s discretion. Client shall pay any such invoice within 30 days of receipt.

2.4. Electronic Check Authorization - If Client elects to accept electronic Checks as a form of payment, the following subsections apply. For the purpose of this section, “checks” means checks drawn on accounts held in the U.S. (“Check(s)”).

2.4.1. As part of the implementation plan, Client shall select risk management controls governing Check acceptance and assumes sole responsibility for the choice of controls.

2.4.2. Consultant shall provide confirmation on a submitted ABA number as part of the Service to assist Client with the decision whether to accept a Check and shall route accepted Checks.

2.4.3. Client hereby authorizes Consultant to debit the Client’s financial institution account in the amount of any returned item that is received by Consultant.

2.5. Client Responsibilities

2.5.1. As a condition to its receipt of the Service, Client shall execute and deliver any and all applications, agreements, certifications or other documents required by Networks or other third parties whose consent or approval is necessary for the processing of Transactions. “Network” is an entity or association that operates, under a common service mark, a system which permits participants to authorize, route, and settle Transactions among themselves, including, for example, networks operated by VISA USA and Mastercard, Inc., NYCE Corporation, American Express, and Discover.

2.5.2. Client represents, warrants, and agrees that it does and will comply with applicable Laws and regulations and Network rules, regulations or operating guidelines. Client shall notify Consultant in writing as soon as possible in the event a claim is either threatened or filed against Client by any governmental organization having jurisdiction over Client or a Customer related to the Service. Client shall also notify Consultant in writing as soon as possible in the event a claim is either threatened or filed against Client relating to Transactions or the Services or a fine or other penalty is assessed or threatened relating to Transactions or the Services.

2.5.3. Client represents, warrants and agrees that it is and will continue to be in full compliance with all applicable requirements of the Client Information Security Program of VISA, the Site Data Protection Program of MasterCard, and similar programs of other Networks, and any modifications to such programs that may occur from time to time. Upon the request of Consultant, Client shall provide Consultant with documentation reasonably satisfactory to Consultant verifying compliance with this Section.

2.5.4. Client hereby grants Consultant the full right, power and authority to request, receive and review any Data or records reflected in a Transaction report. Client represents and warrants that it has the full right and authority to grant these rights.

FEES

3. Recurring Costs

Item Price Comments
Annual Software Use and Hosting
Services
Year 22/23 $21,085.46
Year 23/24 $22,772.29
Year 24/25 $24,594.07
Year 25/26 $26,561.59
Year 26/27 $28,686.52
Billed Annually + CPI 1

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1 Amounts listed here for years 2023/24 and beyond include 8% CPI each year only for budgeting purposes. Actual CPI may be higher or lower.

3.1. Software Use Fee – Software Use Fee is billed annually and provides for ongoing customer support and updates to the software. Fee will be increased as of January 1st of each calendar year with reference to the 12-month percent change in the most recently published annual Consumer Price Index for All Urban Consumers (CPI-U), West Region, ID: #CUUR0400SA0 as reported by the U.S.

Bureau of Labor Statistics (the “CPI Change”). Each annual increase in the Fees will be equal to the greater of two percent (2%) or the actual CPI Change and the lesser of eight percent (8%) or the actual CPI Change. For example, if the actual CPI Change is 1.5%, then the annual increase will be 2%, if the actual CPI Change is 3.5%, then the annual increase will be 3.5%, and if the actual CPI Change is 12%, then the annual increase will be 8%.

3.2. Customizing Services – The Software is a customizable off the shelf system (COTS), and has been designed to meet certain issues faced by government entities. Should the need occur, Consultant is available to provide custom enhancements to the Software on a Programmer hourly Fee and material basis. No such Services shall be performed without Client’s prior written approval.

3.3. Hourly Fees - Fees for performing the hourly Services described above and as may otherwise be provided pursuant to this Schedule shall be based on the following initial hourly rates: (i) Principal - $325; (ii) Programmer - $295; (iii) Senior Analyst - $245; and (iv) Analyst - $195.

4. Payment Processing Services

4.1. Payment Processing Model – At the option of the Client, Consultant will configure payment processing Services to utilize a taxpayer funded model (convenience fee) and/or a Client funded interchange pass-through model. Following a reasonable advance written notice to Consultant, Client may switch between these models.

4.1.1. Taxpayer Funded - Fees for this Services model are as follows. (Client authorizes Consultant to collect each convenience fee).

Item Fees
TAX PAYER PAYS:

Credit and Debit Cards processing

2.9%, minimum of $2.00
ACH/eCheck processing $1.25 per transaction
ACH/eCheck Returns $10.00 per event
Chargebacks $25.00 per event
CLIENT PAYS:

Payment Account Hosting and Maintenance

$33.26 per month

4.1.2. Client Funded – Fees for this Service model are as follows

Item Fees
Credit and Debit Cards processing 2.9% + $0.30 per transaction ACH/eCheck processing $0.50 per transaction
Payment Account Hosting and Maintenance $33.26 per month ACH/eCheck Returns $10.00 per event
Chargebacks $25.00 per event

4.2. Consultant reserves the right to review and adjust all payment processing (Client-funded and convenience fee model) pricing under Section 4.1 on an annual basis in June. This adjustment may be consistent with the then most recent ECI adjustment or three percent (3%) whichever is greater. Items that 314
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will be considered in the review of payment processing fees may include, but are not limited to:
regulatory changes, card association rate adjustments, card association category changes, bank/processor dues and assessments, average consumer payment amounts, and card type utilization.

5. Payment Schedule

5.1. Any travel and lodging expenses are billed at cost as they are incurred. Such expenses shall be due within 30 days of the billing date.

5.2. Recurring software service fees will be invoiced each year on the anniversary of the effective date of the Agreement, and shall be due within 30 days of the invoice date.

5.3. Payment processing service fees and any hourly fees are invoiced monthly for the prior month’s activity, and shall be due within 30 days of the invoice date.

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EXHIBIT “B”

INSURANCE REQUIREMENTS

Please refer to the insurance requirements listed below. Those that have an “X” indicated in the space before the requirement apply to Provider’s or Consultant’s Agreement.

Provider or Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that wor k by the Provider or Consultant, its agents, representatives, employees or subcontractors.

Provider or Consultant shall provide its insurance broker(s)/agent(s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all required endorsements.

Provider or Consultant shall furnish City with copi es of original endorsements affecting coverage required by this Exhibit B. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City be fore work commences. City has the right to require Provider’s or Consultant’s insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.

Commercial General Liability (CGL):

___ Coverage at least as broad as Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury w ith limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

_X__ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000.00 per occurrence . If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

___ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Automobile Liability:

_X__ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), of if Provider or Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000.00 combined single limit for bodily injury and property damage.

___ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limits no less than $5,000,000.00 combined single liit for bodily injury and property damage.

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___ Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Provider or Consultant, regardless of where the vehicles are kept or driven.

Professional Liability (Errors and Omissions):

_X__ Insurance appropriates to the Provider or Consultant’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate.

___ (If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate.

___ Insurance appropriates to the Provider or Consultant’s profession, with limit no less than ______ per occurrence or claim, ______ aggregate

Workers’ Compensation Insurance:

_X__ Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000.00 per accident for bodily injury or disease. (Not required if Provider or Consultant provides written verification it has no employees)

The Employer’s Liability policy shall be endorsed to waive any right of subrogation as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Builder’s Risk (Course of Construction):

___ Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. If the project does not involve new or major reconstruction, at the option of the City , an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

Contractor’s or Consultant’s Pollution Legal Liability:

___ Contractor’s or Consultant’s pollution legal liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000.00 per occurrence or claim and $2,000,000.00 policy aggregate.

If the Contractor or Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor or Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Cyber Liability Insurance

_X__ Cyber Liability Insurance with limits not less than $1,000,000 per claim.

Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Provider or Consultant in this Agreement and shall include, but not be limited to, claims involving 317
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infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security.

The policy shall provide coverage for breach resp onse costs as well as regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations.

Surety Bonds:

Provider shall provide the following Surety Bonds:

____ Bid Bond
____ Performance Bond
____ Payment Bond

The Payment Bond and Performance Bond shall be in a sum equal to the contract price. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.

Other Insurance Provisions:

The insurance policies are to contain, or be endorsed to contain the following provisions:

_X__ Additional Insured Status and Primary/Non-Contributory Language:

Provider’s general liability and automobile liability policies shall be primary and shall not seek contribution from the City’s coverage and be endorsed to add the City and its officers, officials, employees, and agents as additional insureds under such policies using Insurance Servi ces Office form CG 20 10 (or equivalent) on the general liability policy. For construction projects, an endorsement providing completed operations coverage for the additional insured on the general liability policy, ISO form CG 20 37 (or equivalent), is also required.

The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

___ Loss Payee Status – Builder’s Risk/Course of Construction Insurance (applicable to Construction Contracts only)

Provider or Consultant may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.

_X__ Notice of Cancellation, Suspension or Otherwise Voiding Policies:

Each insurance policy required above shall contain or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City.

_X__ Waiver of Subrogation:
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Provider or Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Provider or Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Provider or Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation Policy shall be endorsed w ith a waiver of subrogation in favor of the City for all work performed by Provider or Consultant, its employees, agents and subcontractors.

___ Completed Operations

For Construction Agreements, Provider shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following the completion of this project. In the event Provider fails to obtain or maintain completed operations coverage as required by this Agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by Provider.

THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS

Deductibles and Self-Insured Retentions (“SIR”):

Any deductibles or self -insured retentions must be declared to and approved by City. The City may require the Provider or Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees; or (2) the Provider or Consultant shall procure a bond guaranteeing payment of lo sses and related investigations, claim administration and defense expenses.

All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability.

Policies containing any SIR provision shall provide or be endorsed to pro vide that the SIR may be satisfied by either the named insured or the City.

City reserves the right to obtain a full -certified copy of any insurance policy and endorsements.

Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers:

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A -VII, unless otherwise acceptable to City.

Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract of work. 319
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3. If coverage is canceled or non -renewed, and not replaced with another claims - made policy form with a Retroactive Date prior to the contract effective date, the Provider or Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Provider’s Pollution Liability Policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Providers Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Subcontractors:

Provider or Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Provider shall ensure that City is an additional insured on insurance required from subcontractors.

Subcontractor agrees to be bound to Provider and City in the same manner and to the same extent as Provider is bound to City under this Agreement and any other contract documents.

Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub-subcontractor to the extent they apply to the scope of the sub -subcontractor’s work. A copy of the City indemnity and insurance provisions will be furnished to the subcontractor upon request.

Verification of Coverage:

Provider or Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Provider or Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Special Risks or Circumstances

City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.

Failure to Comply:

Each insurance policy required above shall contain or be endorsed t o contain that any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Applicability of Coverage:

Each insurance policy required above shall contain or be endorsed to contain that the Provider’s or Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 320
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CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Waive the Second Reading and Adopt Ordinance No. 38.845 Amending Sections of Chapter 10 of Title XI and Sections of Chapter 100 of Title V of the Milpitas Municipal Code Relating to Mobile Food Vending (Food Trucks) (Staff Contact: Ned Thomas, Planning Director, 408-586-3273)

Category: Consent Calendar-Community Development
Meeting Date: 6/21/2021
Recommendation: Move to waive the second reading and adopt Ordinance No. 38.845 amending sections of Chapter 10 of Title XI and Section of Chapter 100 of Title V of the Milpitas Municipal Code relating to mobile food vending (Food Trucks).

Background:

This Ordinance was introduced at the June 7, 2022 City Council meeting. The Ordinance is now ready for its second reading and adoption.

Fiscal Impact:

The City will collect application fees for any Minor Site Development Permits, Special Event Permits, or Conditional Use Permits required under the regulations established by the proposed amendments to the Milpitas Municipal Code. City staff reviews permit applications on a cost-recovery basis, and the amount of fees collected will depend upon the number of applications received, which is unknown at this time.

California Environmental Quality Act:

The proposed ordinance would enact new regulations for mobile food vending to promote the safe and orderly operation of food trucks in appropriate locations of the city. It would require City staff review of proposed mobile food vending operations to ensure that these uses comply with standards and requirements intended to protect public health and safety and to avoid potential nuisances and negative impacts associated with food trucks. It would apply standards to mobile food vending that are comparable to or more stringent than those that apply to other temporary or permanent land uses regulated under the City’s Zoning Code. Therefore, it can be seen with certainty that there is no possibility that the ordinance in question would have a significant effect on the environment.

Accordingly, adoption of the proposed Ordinance is exempt from environmental review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15183 (Projects Consistent with a General Plan) and 15061(b)(3) (Common Sense Exemption).

Recommendation:

Move to waive the second reading and adopt Ordinance No. 38.845 amending sections of Chapter 10 of Title XI and Chapter 100 of Title V of the Milpitas Municipal Code relating to mobile food vending (food trucks).

Attachments:

1. Ordinance No. 38.845

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REGULAR

NUMBER: 38.845
TITLE: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MILPITAS AMENDING SECTIONS OF CHAPTER 10 OF TITLE XI AND SECTIONS OF CHAPTER 100 OF

TITLE V OF THE MILPITAS MUNICIPAL CODE RELATING TO MOBILE FOOD

VENDING AND MAKING FINDINGS OF CEQA EXEMPTION

HISTORY: This Ordinance was introduced (first reading) by the City Council at its meeting of June 7, 2022, upon motion by Vice Mayor Montano and was adopted (second reading) by the City Council at its meeting of _______________, upon motion by ____________________________. The Ordinance was duly passed and ordered published in accordance with law by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:

________________________________ __________________________ Wendy Wood, City Clerk Rich Tran, Mayor

APPROVED AS TO FORM:

________________________________
Michael Mutalipassi, City Attorney

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RECITALS AND FINDINGS:

WHEREAS, the City of Milpitas, California (the “City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, California Government Code Sec tion 65800 et seq. authorizes the adoption and administration of zoning laws, ordinances, rules and regulations by cities as a means of implementing the General Plan; and
WHEREAS, mobile food vehicles, also commonly known as food trucks, have become incre asingly common and popular in recent years, and Milpitas has experienced an increase in the number of mobile food vehicles operating or seeking to operate in the city; and WHEREAS, mobile food vehicles provide a valuable service that is enjoyed by Milpitas residents, create opportunities for small businesses, and contribute to active, interesting and vibrant neighborhoods in the city; and WHEREAS, the Planning Department currently has written standards for the operation of mobile food vehicles, which are not regulatory and do not have the force of law; and WHEREAS, the City’s Zoning Ordinance, Chapter 10 of Title XI of the Milpitas Municipal Code, does not currently include regulations for mobile food vending or mobile food vehicles; and WHEREAS, the City wishes to enact appropriate regulations applying to mobile food vehicles that encourage their operation in Milpitas while also maintaining public safety, health and welfare and avoiding negative impacts from the operation of mobile food vehicles; and WHEREAS, the City has prepared a Zoning Amendment (“Amendment”) to the City’s Municipal Code, including adding a new Section 13.18 (“Mobile Food Vending”) to Title XI, Chapter 10 –Zoning; refinements to Subsection 4.02 (“Residential Use Regulations”), Subsection 5.02 (“Commercial Use Regulations”), Subsection

6.02 (“Mixed Use Regulations”), Subsection 7.02 (“Industrial Use Regulations”), Subsection 10.02 (“Institutional Use Regulations”), Subsection 15.04 (“Special Events and Activities – Definitions”), Subsection 39.03 (“POS Park and Public Open Space District – Conditional Uses”), and Subsection 53.09 (“Off-Street Parking Required by Land Use” ) of Title XI, Chapter 10 –Zoning; and refinements to Subsection 10.11 (“Unlawful Parking – Peddlers, Vendors”) of Title V, Chapter 100–Traffic, of the Municipal Code; and WHEREAS, on February 24, 2021, the Planning Commission for the City of Milpitas held a lawfully noticed public hearing to solicit public comment and consider the proposed Amendment, take public testimony, and make a recommendation to the City Council on the project; and WHEREAS, on April 5, 2022, the City Council of the City of Milpitas held a study session to consider the proposed Amendment and to provide comments and direction to Planning Department staff; and WHEREAS, this ordinance is exempt from the California Environmental Quality Act, Public Resources Code Section 21000, et seq. (“CEQA”), each as a separate and independent basis, pursuant to CEQA Guidelines Section 15183 (projects consistent with the G eneral Plan) and Section 15061(b)(3) (no possibility of significant environmental effect).

NOW, THEREFORE, the City Council of the City of Milpitas does ordain as follows:
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SECTION 1. RECORD AND BASIS FOR ACTION
The City Council has duly considered the full record before it, which may include but is not limited to such things as the City staff report, testimony by staff and the public, and other materials and evidence submitted or provided to the City Council. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT
Based on its review of the entire record, including the staff report, public comments and t estimony presented to the Planning Commission and City Council, and the facts outlined below, the City Council hereby finds and determines that this ordinance is categorically exempt from the California Environmental Quality Act (“CEQA”) under CEQA Guideli nes, § 15061(b)(3), also known as the “common sense exemption”, which exempts from CEQA any project where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. A “signific ant effect on the environment” means a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project.

This Ordinance would introduce new regulations for mobile food vending to promote the safe and orderly operation of food trucks in appropriate locations of the city. It would require City staff review of proposed mobile food vending operations to ensure that these uses comply with standards and requirements intended to protect public health and safety and to avoid potential nuisances and negative impacts associated with food trucks. It would apply standards to mobile food vending that are comparable to or more stringent than those that apply to other temporary or permanent land uses regulate d under the City’s zoning code. Therefore, it can be seen with certainty that there is no possibility that this Ordinance would have a significant effect on the environment; accordingly, this Ordinance is exempt from CEQA review.

Moreover, the City Counci l hereby finds that the introduction and adoption of this Ordinance is categorically exempt from CEQA pursuant to CEQA Guidelines Section 15183 (Projects Consistent with a Community Plan, General Plan, or Zoning). Section 15183 of the CEQA Guidelines provides that projects that are consistent with a Community Plan, General Plan or Zoning for which an EIR has been certified “shall not require additional environmental review, except as might be necessary to examine whether there are project -specific significant effects which are peculiar to the project or its site.” The Land Use Element of the City’s General Plan includes policies and guidelines related to promoting economic development and small business opportunities and allowing diverse land uses that crea te lively neighborhoods with amenities for residents and workers. The proposed ordinance would implement such policies by allowing mobile food vending as a type of small business and as an amenity for consumers. Therefore, the proposed Amendment is consis tent with the General Plan.

Therefore, the proposed Amendment is consistent with the General Plan and is exempt from CEQA pursuant to Section 15183 of the CEQA Guidelines.

Accordingly, this Ordinance is exempt from CEQA review pursuant to Sections 15061(b )(3) and 15183 of the CEQA Guidelines, each as a separate and independent basis.

SECTION 3. GENERAL PLAN CONSISTENCY
The proposed zoning amendment s support several of the guiding principles and policies of the General Plan.

Specifically, allowing mobile f ood vending is consistent with policies and guidelines in the Land Use Element related to economic development, job creation and supporting local business opportunities. This ordinance regulating mobile food vending is also aligned with the General Plan objective to allow land uses that provide community amenities. Therefore, the proposed Amendment is consistent with the General Plan. 324
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SECTION 4. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE V, CHAPTER 10 0, SECTION 10
Title V, Chapter 100, Section 10 (Stopping, Standing and Parking), Subsection V-100-10.11 (Unlawful Parking – Peddlers, Vendors) of the Milpitas Municipal Code is hereby amended to read as follows:

V-100-10.11 – Unlawful Parking – Peddlers, Vendors

10.11-1 Except as otherwise provided in this section, no person shall stand or park any vehicle, wagon or push-cart from which goods, wares, merchandise, fruits, vegetables or foodstuffs are sold, displayed, solicited or offered for sale or bartered or exchanged, or any lunch wagon or eating ca r or vehicle, on any portion of any street within this City, except that such vehicles, wagons or push -carts may stand or park only at the request of a bona fide purchaser for a period of time not to exceed ten (10) minutes at any one place. The provisions of this Subsection shall not apply to persons delivering such articles upon order of, or by agreement with a customer from a store or other fixed place of business or distribution.

10.11-2 Deleted by Ord. 43.139.

10.11-3 Deleted by Ord. 43.139.

10.11-4 Deleted by Ord. 43.139.

10.11-5 It shall be unlawful to sell, display, solicit or offer for sale, barter or exchange or otherwise peddle or vend any goods, wares or merchandise (including, but not limited to wearing apparel, flowers or foodstuffs) from the sidewalk, curb or street (and whether on foot or from any vehicle, wagon or cart, or otherwise) at any of the following locations within the City of Milpitas:

1. Abbott Avenue from Spence Avenue to Calaveras Boulevard

2. Abel Street (Entire)

3. Calaveras Boulevard/SR-237 from and including the western City Limit to Coyote Creek to and including its intersection with Carnegie Drive

4. Capitol Avenue from Abel Street to the south City Limits

5. Dixon Landing Road (Entire)

6. Dixon Road from Milpitas Boulevard to A rizona Avenue

7. Jacklin Road from Milpitas Boulevard to and including Park Victoria Drive

8. Landess Avenue those portions within the City of Milpitas

9. Main Street from Curtis Avenue to south City Limits

10. McCarthy Boulevard (Entire)

11. Milpitas Boulevard (Entire)

12. Montague Expressway (Entire)

13. Park Victoria Drive from Ayer Street to south City Limits 325
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14. Serra Way (Entire)

10.11-62 Application

(a) The provisions of V -100-10.11-5 shall be applicable to any vehicle, wagon or push -cart, to which V-100-10.11-1 applies.
(b) The provisions of this Section V-100-10.11 shall not apply to mobile food vehicles as defined in Section XI-10-13.18(B).

SECTION 5. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 4
Title XI, Chapter 10, Section 4 (Residential Zones and Standards) , Subsection XI -10-4.02 (Residential Use Regulations), Table XI-10-4.02-1 (Residential Zone Uses) of the Milpitas Municipal Code is hereby amended to read as follows:

XI-10-4.02 - Residential Use Regulations
Table XI-10-4.02-1
Residential Zone Uses
Use R1 R2 R3 R4 R5

1. Commercial
Commercial services 1,2 NP NP C C C

2. Professional Offices and related uses
Offices 1,2 NP NP C C C

3. Public/Quasi-Public and Institutional Uses
Child care center C C C C P
Nursing home 3 NP C C C C
Park, playground or community center (non-profit) C C C C C Parking lots C C C C C
School (not trade or vocational) C C C C C
Places of Assembly C C C C C

4. Residential Uses
Condominiums and condo conversions NP
SFR: C
Duplex:

C

C C C
Duplex (Two dwellings) NP P NP NP NP
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Use R1 R2 R3 R4 R5
Group dwelling NP NP NP C C
Guest house C NP NP NP NP
Manufactured home 4 P P NP NP NP
Multi-family dwellings (Three or more units) NP NP P P P Planned unit development 5 P P P P P
Accessory dwelling unit 6 P
SFR: P
Duplex:

P

P P P
Single-family dwelling P P NP NP NP
Single-room occupancy residences 7 NP NP C C C
Transitional and supportive housing P 8 P 8 P 9 P 9 P 9

5. Restaurants or Food Service
Restaurants 1,2 NP NP C P/C P/C
Catering establishment 10 NP NP NP NP NP
Mobile Food Vending (individual vehicle)11 P12,13,14 P12,13,14 P12,13,14 P12,13,14 P12,13,14 Mobile Food Park NP NP NP NP NP
Commissary 10 NP NP NP NP NP

6. Unclassified Uses
Agriculture 10 15 P P P NP NP
Boarding house (three or more persons) NP C C C C
Golf course 11 16 C C C NP NP
Live work units 12 17 NP NP C C C
Model home complex 13 18 P P P P P
Short-Term Rentals 14 19 P P P P P

1 Refer to Subsection XI -10-4.03(A), Residential Zone Special Uses, of this Chapter, for standards. 2 Refer to Subsection XI -10-4.03(B), Residential Zone Special Uses, of this Chapter, for standards. 3 Licensed nursing home serving more than six persons, except when used primarily for contagious sickness, mental or drug alcoh ol addict cases.
4 Refer to Subsection XI -10-13.07, Manufactured Homes, of this Chapter, for standards. 5 Refer to Subsection XI -10-54.07, Planned Unit Developments, of this Title, for standards. 327
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6 In conjunction with existing or proposed legal single -family, duplex, or multi -family dwellings. Refer to Subsection XI -10-13.08, Accessory Dwelling Units, of this Chapter, for standards. 7 Refer to XI-10-13.13, Special Uses, Single Room Occupancy Residences, of this Chapter. 8 Permitted only in single family dwellings.
9 Permitted only in multi-family dwellings.
10 May be permitted with approval of a Conditional Use Permit for kitchens associated with a civic or community organization, su ch as a church or social club.
11 Refer to Subsection XI -10-13.18, Mobile Food Vending, of this Chapter. 12 Mobile food vending in the R1, R2, and R3 zones may be permitted in the public right-of-way as part of an approved special event. See Subsection XI-10-13.18(C)(3)(a)(i). Mobile food vending in the R4 and R5 zones is permitted in the public right-of-way upon issuance of all required City and County permits (see Subsection XI-10-13.18(H). 13 In all residential zones, mobile food vending on private property may be permitted on a parcel having a current certificate of use and occupancy as a museum, hospital, school, or place of religious assembly and worship, provided that the mobile food vending use shall not operate more frequently than once per week and for no longer than three consecutive days. 14 In the R1, R2, and R3 residential zones, mobile food vending shall not be permitted on a private property having a residential use. In the R4 and R5 residential zones, mobile food vending on private property having residential use may be permitted as part of an appro ved, on-time or recurring special event. See Subsection XI-10-13.18(C)(3)(a)(i). 10 15 Except for the raising of animals or fowl for commercial purposes, or the sale of any products at retail on the premises. 11 16 Except for driving tee or range, miniature course and similar uses operated for commercial purposes. 12 17 Allowed commercial uses to be specified through the Conditional Use Permit process. 13 18 Refer to Subsection XI -10-13.11(E), Model Home Complexes and Sales Offices, of this Chapter for temporary tract offices. 14 19 Subject to the requirements of Subsection XI -10-13.16, Short -Term Rentals, of this Chapter.

SECTION 6. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 5
Title XI, Chapter 10, Section 5 (Commercial Zones and Standards) , Subsection XI -10-5.02 (Commercial Use Regulations), Table XI-10-5.02-1 ( Commercial Zone Uses ) of the Milpitas Municipal Code is hereby amended to read as follows:

Table XI-10-5.02-1
Commercial Zone Uses
Use CO C1 C2 HS TC

1. Commercial Uses
Alcoholic beverage sales C 6 C C NP C
Art/photography studio or gallery NP P P P P
Bookstore NP P P P P
Commercial services 1 P P P NP P
Funeral home or mortician NP NP C C NP
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Use CO C1 C2 HS TC
Furniture sales NP P P P P
Grocery store (supermarkets)
Within 1,000 ft. of residential zone NP C C C C
Not within 1,000 ft. of residential zone NP P P P P Head/smoke/tobacco shop NP C C NP C
Home improvement (hardware, blinds, interior
decorating, etc.) NP P P C P
Not fully enclosed operation NP C C C C
Household appliance store 7 NP NP P P NP
Small appliance repair NP NP MCS P NP
Large appliance repair NP NP NP P NP
Janitorial services NP NP P P NP
Newsstand
Indoor P P P NP P
Outdoor C C C NP C
Nursery (flower or plant)
Indoor NP NP P 2 P P
Outdoor NP NP C P NP
Office supply sales (stationery, equipment) P P P P P Paint and wallpaper stores NP NP P P P
Pawnshops NP NP C NP NP
Pet stores NP NP P P P
Printing (newspaper, publishing) NP NP P P P
Rentals (medical supplies, costumes, party
equipment, office equipment) NP NP P P P
Retail stores, general merchandise NP P P NP P
Tanning salon NP NP P NP P
Thrift store 3 NP C P P P

2. Entertainment and Recreation
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Use CO C1 C2 HS TC
Adult business 4 NP NP NP P NP
Bowling alley NP NP P P P
Commercial athletic facilities
Indoor NP C P P P
Outdoor NP NP NP C NP
Motion picture theater (See 7 below)
Recreation or entertainment facility NP C C C C
Shooting range, indoor NP NP NP C NP

3. Health and Veterinarian Uses
Animal grooming (no boarding) NP P P P P
Hospital C NP C C C
Kennel NP NP C NP NP
Massage establishment 15 NP NP MC MC MC
Massage establishment, accessory 15 NP NP MCS MCS MCS Medical and dental office P P P NP P
Medical and dental clinic P C C NP P
Medical support laboratories P C C C C
Optician and optometrist shop P P P NP P
Pharmacy or drug store NP P P P P
Sauna and steam bath NP NP NP P NP
Veterinary clinic NP NP P P P

4. Industrial Uses 5
Assembly from pre-processed materials NP NP C NP NP Commercial fueling facility NP NP NP C NP
Commercial laboratory NP NP C P NP
Contractor's yards and offices NP NP C C NP
Disinfection and extermination business NP NP C P NP Dry cleaning plant NP NP NP P NP
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Use CO C1 C2 HS TC
Food storage locker NP NP NP P NP
Landscape contractor NP NP C P NP
Lumberyards NP NP C C NP
Mini-storage complex NP NP C C NP
Plumbing, metalworking, glassworking or
woodworking NP NP C C NP
Research & development NP NP C NP NP
Sign sales and fabrication (Electric and neon sign,
sign painting) NP NP C P NP
Warehousing and wholesale NP NP C NP NP

5. Lodging
Hotel and motel NP NP C C C

6. Professional Offices, Financial Institutions and Related Uses Automatic teller machines (freestanding) 6 NP P P P P Financial institutions (banks, savings and loans,
etc.) P P P P P
General offices (administrative and business
services, real estate, travel agencies, etc.) P P P P P

7. Public, Quasi-Public and Assembly Uses
Auction hall NP NP C C C
Child care
Child care center C C C C C
Day care school C C C C C
Large family child care home NP NP NP NP C
Small family child care home NP NP NP NP C
Places of assembly C C C C C
Cultural center NP NP C C C
Educational institutions
Schools, private (elementary, middle, high) NP NP C NP C Trade and vocational school C NP P P C
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Use CO C1 C2 HS TC
Farmer's market (not including flea market) NP C C C C Instruction
Group 8 MCS MCS MCS MCS MCS
Private P P P P P
Motion picture theater
Indoor NP C C C C
Outdoor NP NP NP C NP
Parking facility, storage garage NP P P C C
Public utilities C C C C C
Transportation facility (taxi, limousine, etc.) NP NP C C C

8. Restaurants or Food Service
Banquet hall NP NP C C C
Bar or nightclub NP NP C C C
Catering establishment NPC NP P P P
Restaurants C 7 P P P P
With live entertainment/dancing NP NP C C C
With drive-in or drive-through NP C C C C
With ancillary on-premise beer & wine with no
separate bar NP MC PMC MC MC
Mobile Food Vending (individual vehicle) 16 P P P P P
Mobile Food Park 16 MC MC MC MC MC
Commissary MC P P P MC

9. Residential Uses
Caretaker (in conjunction with contractor's yard or
mini-storage complex) NP NP C C NP
Emergency shelters 9 NP NP NP P/C NP
Single-room occupancy residences 10 NP NP NP C NP

10. Vehicle Related Uses
Auto repair (tire, oil change, smog check, etc.) NP NP C C NP 332
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Use CO C1 C2 HS TC
Auto sales and rental, outdoor (new and used cars,
RV and truck) NP NP C C NP
Auto broker (wholesale, no vehicles on site) MCS MCS MCS MCS MCS Car wash NP NP C C NP
Service stations (with or without repair or retail) 11 C C C C C Drive through uses (restaurants, pharmacies, etc.) NP C C C C

11. Unclassified Uses
Accessory structures 12 P P P P P
Model home complex 13 NP NP NP NP P
Mortuary or crematory NP NP NP C NP
Radio or television station NP NP C P NP
Temporary seasonal sales 14 NP P P P P

1 Refer to the definition for "Commercial Services" in Section 2, Definitions, of this Chapter. 2 Provided that all incidental equipment and supplies, including fertilizer and empty cans, are kept within a building. 3 Refer to XI-10-5.04, Commercial Zone Special Development Standards, of this Chapter. 4 In accordance with the Title III, Chapter 4, Adult Business Ordinance, and Subsection 13.04, Adult Businesses, of this Chapte r. 5 For conditionally permitted uses, r efer to Subsection 57.04(C) (9), Certain Industrial Uses within Commercial Districts, of this Chapter. 6 Refer to Subsection 57.03, Site Development Permits and Minor Site Development Permits, of this Chapter. 7 When intended to serve the occupants and patrons of the permitted use (office, etc.) and conducted and entered from within the building and provided there is no exterior display of advertising. 8 Refer to Subsection 5.02 -1, Commercial Zone Special Uses, of this Section. 9 Refer to XI-10-13.14, Special Uses, Emergency Shelters, of this Chapter. 10 Refer to XI-10-13.13, Special Uses, Single Room Occupancy Residences, of this Chapter. 11 Refer to Subsection XI -10-6.02-2, Special Uses, of this Chapter, for standards. Service stations shall fo llow the "General development policy: Gasoline service stations, and automotive service centers" adopted by the City Council on December 19, 1995. 12 Not including warehouses on the same site as the permitted use. 13 No tract sign shall be permitted wi thin 600 feet of a Santa Clara County Expressway. 14 Refer to Section 13.11, Temporary Uses and Structures, of this Chapter. 15 Massage establishments are subject to Title III, Chapter 6 of the Milpitas Municipal Code and Subsection XI -10-13.16 of this title.

Refer to Subsection XI -10-13.16, of this Title, for special provisions for massage establishments. 16 Refer to Subsection XI-10-13.18, Mobile Food Vending, of this Chapter. 333
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SECTION 7. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 6
Title XI, Chapter 10, Section 6 (Mixed Use Zones and Standards) , Subsection XI -10-6.02 (Mixed Use Regulations), Table XI-10-6.02-1 (Mixed Use Zone Uses) of the Milpitas Municipal Code is hereby amended to read as follows:

Table XI-10-6.02-1
Mixed Use Zone Uses
Use MXD
MXD2
MXD3 Ground Level
(Facing Retail street) Upper Floor

1. Commercial Uses
Alcohol beverage sales C C C C
Commercial services 1 MCS MCS MCS MCS
Grocery stores (supermarkets) C C C C
Pawnshops 2 C C C C
Pet shops C NP NP NP
Retail stores, general merchandise 3 MCS MCS MCS MCS Tanning salons P P P P
Thrift shops (used merchandise)
Retail P P P P
With collections C C C C

2. Entertainment and Recreation
Commercial athletic facilities P P P P
Motion picture theater (see 6 below)
Recreation or entertainment facility C C C C

3. Health and Veterinarian Uses
Animal grooming (no boarding) P P NP P
Hospitals or sanitariums 4 C C C C
Massage establishment 17 MC MC MC MC
Massage establishment, accessory 17 MCS MCS MCS MCS Medical or dental offices and clinics P NP P P
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Medical support laboratories P P P P
Optician and optometrist shop P P P P
Pharmacy or drug store P P P P
Veterinarian clinic P P P P

4. Lodging
Bed and breakfast P P NP NP
Boarding houses (3 or more persons) C C C C
Group dwellings C C C C
Hotels C P P P
Motels C C C C

5. Professional Offices, Financial Institutions and Related Uses4 Financial institutions (banks, savings and loans,
etc.) MCS NP MCS P
Offices 3 MCS NP MCS P

6. Public/Quasi Public and Assembly Uses
Child care
Child care center C P C P
Day care school C C C
Large family child care home P P C P
Small family child care home P P P P
Instruction
Group 13 P NP NP NP
Private P P P P
Park, playground or community center 5 O O O O
Places of assembly 4 C C C C
Public utilities C C C C
Schools, private (elementary, middle and high) 4 C C C C Theaters (Indoor) C C C C
Trade and vocational schools 4 C C C C
Transportation facilities 2 C C C C
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7. Residential Uses
Multi-family housing 7 P NP P P
Transitional and supportive housing 7 P NP P P
Accessory Dwelling Unit 19 P NP P P

8. Restaurants or Food Service
Bar or nightclub C C C C
Brewery/Eateries 10 MCS MCS NP MCS
Catering establishments C C C C
Restaurants 2 P/C P/C NP P/C
With dancing and entertainment C C C C
With ancillary on-premise beer & wine with
no separate bar P P P P
Mobile Food Vending (individual vehicle) 20 P P NP P
Mobile Food Park 20 MC NP NP MC
Commissary MC NP NP MC

9. Unclassified Uses
Artisan Studios & Live-work units,
woodworking or glassworking, plumbing or
metalworking and sign shops 2

MCS MCS MCS MCS
Lobbies and entries for upper floor uses P P NP P
Model home complex 11 P P P P
Mixed use developments 12 P P P P
Planned Unit Development 13 P P P P
Temporary seasonal sales 14 P P P P
Short-Term Rentals 18 P NP P P

10. Vehicle-Related Repair, Sales and Services
Auto sales and rental 15 C C C C
Auto broker (wholesale, no vehicles on site) 2 MCS MCS MCS MCS Vehicle service uses 16 C NP NP C

1 Refer to Subsection XI -10-6.02-1(B), Performance standards for certain uses, of this Chapter, for standards. 2 Refer to Subsection XI -10-6.02-1, Special Uses, of this Chapter, for standards. 336
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3 Refer to Subsection XI -10-6.02-1(B) Performance standards for certain uses, of this Chapter. 4 Refer to Subsection XI -10-6.02-2, Quasi-Public Uses, of this Chapter, for sta ndards. 5 For parks, playgrounds or community center owned and operated by a government agency or a nonprofit community organization. 6 Refer to XI-10-13.14, Special Uses, Emergency Shelters, of this Chapter. 7 Ground level residential is prohibited in the Ground Level Commercial Area as shown on the Midtown Specific Plan Land Use Map, Figure 3.1.
8 Refer to XI-10-13.13, Special Uses, Single Room Occupancy Residences, of this Chapter. 9 Uses serving upper -floor residential uses, such as common gatherin g space, lobby, and resident services, may be allowed as ground floor uses where residential uses would otherwise not be permitted. 10 Reserved.
11 Refer to Subsection XI -10-13.11(E), Model Home Complexes and Sales Offices, of this Chapter for temporary tract offices. 12 Which include only permitted uses.
13 Refer to Section XI -10-54.07, Planned Unit Developments, of this Chapter, for standards. 14 Refer to Section XI -10-13.11(D), Temporary Seasonal Sales, of this Chapter. 15 New and used auto, recrea tional vehicle and boat sales, excluding commercial vehicles, trucks, buses, vans, and farm equipment, with accessory repairs and services, only allowed if fully enclosed within a building. Bicycle and auto rental agency, excluding c ommercial vehicles, tru cks, buses, vans, boats and RV rentals, only if fully enclosed within a building. 16 Refer to Subsection XI -10-6.02-2, Special Uses, of this Chapter, for standards. Service stations shall follow the "General development policy: Gasoline service stations, and automotive service centers" adopted by the City Council on December 19, 1995. 17 Massage establishments are subject to Title III, Chapter 6 of the Milpitas Municipal Code and Subsection XI -10-13.16 of this title.

Refer to Subsection XI -10-13.16, of th is Title, for special provisions for massage establishments. 18 Only allowed within a dwelling unit, subject to the requirements of Subsection XI -10-13.17, Short -Term Rentals, of this Chapter. 19 Only allowed within multi -family dwellings, subject to the requirements of Subsection XI -10-13.08, Accessory Dwelling Units, of this Chapter.
20 Refer to Subsection XI-10-13.18, Mobile Food Vending, of this Chapter.

SECTION 8. AMENDMENT OF MILPITAS MUNICI PAL CODE TITLE XI, CHAPTER 10, SECTION 7
Title XI, Chapter 10, Section 7 (Industrial Zone and Standards) , Subsection XI -10-10.02 (Industrial Use Regulations), Table XI-10-10.02-1 (Industrial Zone Uses) of the Milpitas Municipal Code is hereby amended to read as follows:

Table XI-10-7.02-1
Industrial Zone Uses
Use M1 M2 MP

1. Commercial Uses
Adult Businesses 1 P NP NP
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Use M1 M2 MP
Business support services P NP P
Commercial services P NP P
Janitorial services P NP P
Office supplies C NP C
Printing (newspaper, blueprint, publishing) P NP C
Retail stores, general merchandise 2 C NP C

2. Entertainment and Recreation Uses
Billiards C NP C
Commercial athletic facilities C NP C

3. Health and Veterinarian Uses
Hospitals NP NP C
Kennel P NP NP
Medical support laboratories P NP P
Medical and dental offices and clinics 2 P NP P
Veterinarian hospital P NP P

4. Industrial Uses
Assembly from pre-processed materials 3 P P P
Auto assembly facility NP P NP
Bottling facility P P NP
Building material sales (equipment rental) 4 NP C NP Commercial fueling facility C C NP
Commercial laboratory P P P
Contractor's yard and offices 4 NP C NP
Distribution facility P P P
Freight and trucking yard 4 NP P NP
Mini-storage complex C C NP
Plumbing, metalworking, glassworking or woodworking P P NP 338
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Use M1 M2 MP
Plant or facility (research & development, assembly,
manufacturing, packaging, processing, repairing, etc. or materials, merchandise or products)

P P P
Pottery or tile manufacturing P P NP
Recycling processing facility C C NP
Warehousing and wholesale P P P

5. Lodging Uses
Hotels/motels C NP C

6. Professional Office Uses
Administrative, professional or research 2 P NP P
Financial institutions (banks, savings and loans, etc.) C NP P

7. Public, Quasi-Public and Assembly Uses
Auditorium 5 NP NP C
Conference center 5 NP NP C
Vocational school C NP C
Farmer's market (not including flea market) 6 NP NP C Public utilities 7 P P P
Transportation facility (taxi, parcel service, armored car, etc.) 4 NP P NP Temporary Public Safety Uses 8 C C C
Places of assembly 12 C NP C

8. Residential Uses
Caretaker's residence C C NP

9. Restaurants or Food Service Uses
Catering establishment P NP P
Restaurants
With on-site service of alcohol C NP C
Without on-site service of alcohol C NP C
With live entertainment/dancing NP NP NP
Drive-in or drive-thru C NP C
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Use M1 M2 MP
Mobile Food Vending (individual vehicle) 13 P P P
Mobile Food Park NP NP NP
Commissary P NP P

10. Vehicle Related Uses
Auto junk yard 4 NP C NP
Auto repair (tire, oil change, smog check, etc.) 9 C P C 10 Service stations (with or without repair or retail) 9 C C C With car wash NP C C
Vehicle sales and rental (auto, RV and truck-new and used in operable condition) 11 C C C 10
Auto broker (wholesale, no vehicles on site) 12 MCS MCS MCS

1 In accordance with the Title III, Chapter 4, Adult Business Ordinance and Subsection XI -10-13.04, Adult Businesses, of this Chapter. 2 When found necessary to serve and appropriate to the industrial area. 3 Assembling, packaging, or distribution from previously prepared materials, such as cloth, plastic, paper, leather, precious o r semi- precious metals or stones, electric or electronic instruments and devices such as television, radios, and pharmaceutical pro ducts. 4 When conducted wholly within a completely enclosed building or within an area enclosed on all sides with a solid wall or fenc e (e.g. chain link with slats) not less than eight feet in height. 5 Shall be ancillary to the primary use or associat ed with business or industrial uses. 6 Refer to Subsection XI -10-13.10, Farmers Markets, of this Chapter. 7 Includes service facilities, electric transmission and distribution substations and public utility service centers. 8 See Subsection XI -10-13.11(I), Temporary Public Safety Uses. 9 Entrances to the services bays shall not be open to the street, but shall be so designed to face the rear or interior side pr operty line. 10 Within MP zones, rental and repair may be considered only when ancillary to new auto dealerships. 11 Within MP zones, boat and camper sales are prohibited. Dealerships shall be on property at least three acres or greater in ar ea. 12 See Subsection XI -10-7.04(A)(1), Industrial Zone Special Development and Performance Standa rds. 13 Refer to Subsection XI-10-13.18, Mobile Food Vending, of this Chapter.

SECTION 9. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 10
Title XI, Chapter 10, Section 10 (Institutional Zones and Standards ), Subsection XI -10-7.02 (Institutional Use Regulations), Table XI-10-7.02-1 (Institutional Zone Uses) of the Milpitas Municipal Code is hereby amended to read as follows:
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Table 10.02-1
Institutional Zone Uses
Use Institutional Zone
Correctional facility C
Educational institutions: 1
Public colleges or universities O
Private colleges or universities C
Public schools O
Farmer's market (not including flea market) C
Government offices and related facilities (Federal, State and Local) C Hospital or sanitarium (Public) 1 C
Library (Public) C
Medical clinic or offices (Public) C
Catering establishment C
Mobile Food Vending (individual vehicle) 3 P
Mobile Food Park NP
Commissary MC
Museum C
Parks C
Public safety uses C
Public service uses C
Public utilities C
Temporary seasonal sales 2 P
Transportation facility C

1 State has authority over permitting process regarding public facilities. 2 Refer to Section XI -10-13.11(D), Temporary Seasonal Sales, of this Chapter. 3 Refer to Subsection XI-10-13.18, Mobile Food Vending, of this Chapter.

SECTION 10. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 15
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Title XI, Chapter 10, Section 15 (Special Events and Activities ), Subsection XI -10-15.04 (Special Events and Activities - Definitions) of the Milpitas Municipal Code is hereby amended to read as follows:

XI-10-15.04 - Definitions
The definitions set forth in this part shall govern the application and interpretation of this Section.

1. "Amplified Sound" means any sound created by the use of sound amplification equipment and/or performance with electric or acoustic instruments associated with a special event.

2. "Athletic Events" means a physical or endurance activity that includes but is not limited to races, runs, walkathons, bicycle tours and the like.

3. "Block Party" means a party for all the residents of a block or neighborhood, typically held o n a temporarily closed City street.

4. "Business day" means any day except Saturday, Sunday and holidays observed by the City of Milpitas.

5. "Business License" means a permit issued by the City of Milpitas that allows individuals, companies, or other entities to transact and conduct business within the City limits.

6. "City Official" means an authorized officer of the City of Milpitas as appointed by the City Manager or City Council.

7. "Director" means the Director or head of the department(s) designated to issue Special Event Permits, or such other person or persons designated by the Director to fulfill the responsibilities identified as the Director's responsibilities herein.

8. "Downtown" means the main business or commercial areas within the Midtown and Transit Area Specific Plan districts and the Town Center Zoning District.

9. "First Amendment Event" means conduct, the sole or principal object of which is the expression, dissemination or communication by verbal, visual, literary, or auditory means of opinion, views or ideas.

Expressive activity includes, but is not limited to, public oratory and distribution of literature.

10. "Food Truck Event" means an event where a more than three food trucks gather in one location.

11.10 "Indigent Natural Person" includes, but is not limited to, a person enrolled or participating in a federal or state government assistance program for low -income or indigent persons such as general assistance, CalWORKS, Medi-Cal, food stamps, Supplemental Security Income (SSI), Women, Infants and Children (WIC), U.S. Department of Housing and Urban Developm ent (HUD) Section 8 rental housing subsidy, and other subsidized or public housing. 1211. "Indoor/Outdoor Facility Rental Agreement" means a rental agreement issued by the Recreation Services Department to conduct a special event in a park.

12. “Mobile Food Vending Event” means an event where two or more mobile food vehicles gather in one location for a period of seven consecutive days or fewer.

13. "Outside Agency" means any local, state or federal regulatory agency responsible for administering permits to allow certain activities within their purview. Outside agencies includes but not limited to other City jurisdictions, Santa Clara Valley Water District (SCVWD), Santa Clara Valley Transportation Authority (VTA), California Department of Transportati on (Caltrans), California Department of Alcoholic Beverage Control, Santa Clara Country Department of Environmental Health and Santa Clara County Roads and Airports.

14. "Parade" means an organized group marching in procession on a street. Parades do not include races, runs or other athletic events.
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15. "Park", for purposes of this Section, means all outdoor areas managed by the Recreation Services Department, which are identified as a City park by the City, made available for use by the public as a park for recreation or open space purposes, and over which the City has the right of use for such purposes.

The term "park" does not include outdoor areas adjacent to community centers not otherwise located within a City park, or property owned by school dist ricts even if the property is used by the City for recreational purposes.

16. "Paseo" means a mall designed and used for pedestrian passage between two or more parallel streets and which is owned or controlled by the City. The definition of "paseo" includes any adjacent sidewalks.

17. "Permittee" means a person, company, corporation or entity that is given a permit or permission to hold a Special Event.

18. "Permit Applicant" means a person, company, corporation or entity that applies for a permit.

19. "Plaza" means a public square or similar open area in the downtown which is owned or controlled by the City. The definition of "plaza" includes any adjacent sidewalks.

20. "Public Right-of-Way" means any street, alley, or similar parcel of land, which is deeded, dedicated, or otherwise permanently appropriated to the public for public use.

21. "Regulations" means the policies, rules and regulations mandated by the City which govern the Special Event Permit and use of City sidewalks, streets, plazas, paseos, and parks.

22. "Simple Assembly" means a gathering of persons at a park, plaza or paseo that does not include any of the following:
a) The placement or erection of equipment or temporary structures other than one portable table and two chairs; or
b) Activities referenced in Section XI-10-15.04(23)(c) of this Code. c) For purposes of illustration, a simple assembly can be a large gathering of 150 persons; no equipment or structures (other than a table and two chairs) are placed or erected; and the other activities (i.e., cooking, sale or public distribution of food and commercial merchandise) are not involved. Nothing herein prevents the use of handheld equipment, including a loudspeaker, and handheld signs at a simple assembly.

23. "Special Event" means an outdoor event that consists of any of the following:
a) A parade or assembly consisting of persons, animals, vehicles, o r any combination thereof, which is to intended to assemble or travel in unison on any street and which does not comply with applicable traffic regulations, laws, or controls;
b) An organized assemblage of 150 or more persons at a plaza or park, or 75 or more persons on a paseo, or any assemblage that exceeds the maximum capacity of the plaza, park or paseo facility gathered for a common purpose under the direction or control of a person or organization; or c) An activity or event on a public right-of-way, plaza, paseo, park or private property which involves:
i. The placement or erection of equipment or temporary structures other than one portable table and two chairs, including but not limited to a booth, tent, canopy, stage, barricade, fencing, generator, heating equipment, sound amplifier, vehicle or float; ii. The use of live animals, fireworks, pyrotechnics, electrical power and/or cabling, or equipment or materials that can create a risk of damage to public or private property or injury to persons; iii. Cooking or the sale, preparation for sale or commercial distribution of food or beverages; iv. The sale of commercial merchandise.
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d) An activity which involves blocking off a street or other use of a street which obstructs the normal traffic thereon.
e) Examples of Special Events include, but are not limited to, concerts, parades, carnivals, fairs, festivals, block parties, public dances, street fairs, community events, sporting or athletic events, parties, meals, food truck gatheringsmobile food vending events, celebrations and receptions. f) For definitions of "Major" or "Minor" Special Events, see Table XI-10-15.03-1: Review Requirements for Special Events.

24. "Special Event Permit" means a permit issued pursuant to this Sec tion, which authorizes the holder to conduct a Special Event at a Special Event Venue in accordance with its terms and conditions. A Special Event Permit includes a Temporary Street Closure Permit, Temporary Assembly Permit, Business License, and any outside agency regulatory permits that may be required for the operations and activities for the aforementioned Special Event.

25. "Special Event Venue" means the outdoor area (i.e., private property, street, park, paseo, or plaza) for which a Special Event Permit has been issued.

26. "Street" means a public or private right -of-way used for vehicular traffic that is owned, controlled or maintained by the City. The definition of "street" includes the entire street right-of-way inclusive of any and all adjacent sidewalks.

27. "Temporary Street Closure Permit" means a permit issued by the Chief of Police of the Milpitas Police Department or designee to conduct a special event on a public street.

28. "Temporary Assembly Permit" means a permit that is issued by the City of Milpitas Fire Marshal for the temporary assembly of 50 or more people associated with a Special Event.

29. "Temporary Collection Service Agreement" means an agreement between the Permittee and City's public service provider for the trash and recycling collection.

30. "Written Request" means written, typed or email correspondence submitted by the applicant to the Director or Designee. Text messages are not included.

SECTION 11. ADDITION OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 13.18
Title XI, Chapter 10, Section 13.18 (Mobile Food Vending) of the Milpitas Municipal Code is hereby added to read as follows:

Section 13.18 – Mobile Food Vending

A. Purpose and Intent

The purpose of this section is to allow mobile food vendors to operate in appropriate areas of the city and to protect and maintain public safety, health and welfare while providing opportunities for small businesses, adding vibrancy and activity to streetscapes and neighborhoods, and exp anding food access in areas underserved by brick-and-mortar restaurants.

B. Definitions

“Catering establishment” means an establishment in which the principal use is the preparation of food and meals on the premises, and where such food and meals are delivered to another location for serving and consumption.
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“Commissary” means a fixed-location kitchen where food is stored and prepared for off-site vending from mobile food vehicles. Commissaries serving mobile food vendors may include shared-use commercial kitchens, private commercial kitchens, restaurant kitchens, and kitchens associated with civic and community organizations such as churches or social clubs; but do not include catering service establishments.

“Ice Cream Truck” means a motorized vehicle selling ice cream or other frozen dairy or non-dairy dessert products on streets and in other public places.

“Mobile Food Park” means a site with two or more mobile food vehicles located together on the same parcel and operating at the same time for more than seven consecutive days.

“Mobile Food Vehicle” means a motorized, wheeled vehicle or towed vehicle designed and equipped to store, prepare, serve and sell food, but which does not include ice cream trucks or mobile food vending wagons or push-carts as regulated in Milpitas Municipal Code Section V-100-10-11.

“Mobile Food Vending” means the selling or offering to sell products from a mobile food vehicle.

C. Mobile Food Vending Review Procedures

1. On Private Property

a. One mobile food vehicle operating on a parcel, when permitted under the use regulations for the applicable zone, may be approved subject to approval of a Minor Site Development Permit (Staff Review) pursuant to Subsection XI-10-57.03(B)(2) of this Chapter.

b. A mobile food park operating for more than seven consecutive days may be approved subject to a Minor Conditional Use Permit (Zoning Administrator Review) pursuant to Subsection XI-10-

57.04(E)(2)(a) of this Chapter.

c. Two or more mobile food vehicles operating on a parcel for a period of seven consecutive days or less shall require a Special Event Permit pursuant to Section 15 of this Chapter.

2. In Public Parks and Open Spaces

a. One mobile food vehicle operating within a public park or open space may be approved subject to approval of a Minor Site Development Permit (Staff Review) pursuant to Subsection XI-10-

57.03(B)(2) of this Chapter.

b. Two or more mobile food vehicles operating together within a public park or open space for a period of seven consecutive days or less shall require a Special Event Permit pursuant to Section 15 of this Chapter.

c. Mobile food parks shall not be permitted within public parks and open spaces.

3. In Public Right-of-Way

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a. Mobile food vending in the public right-of-way is permitted subject to the review and approval of the Milpitas Planning Department, as follows:

i. In low- and medium-density residential zoning districts R1, R2, and R3, mobile food vending in the public right-of-way may be permitted as part of a one-time or recurring special event for which a Special Event Permit has been issued pursuant to Subsection XI-10-15.07 of this Chapter, or as part of another official event authorized by the City (e.g., National Night Out).

ii. In high-density residential zoning districts R4 and R5; all commercial, industrial, mixed-use, and institutional zoning districts; and within the Specific Plan areas; mobile food vending in the public right-of-way is permitted upon issuance of all required City and County permits per Section XI-10-13.18(H).

4. Ice Cream Trucks

a. Ice cream trucks may operate on public rights-of-way in all zoning districts, including residential zones, and in public parks with no City of Milpitas Zoning permits required (i.e. permits administered under Milpitas Municipal Code Chapter XI-10 – Zoning). Ice cream trucks shall be required to obtain a City of Milpitas business license.

b. An operator of an ice cream truck proposing to vend in a stationary location on private property shall be subject to all requirements, standards, and permitting procedures in Section XI-10-13.18 that apply to mobile food vehicles.

D. Location and Siting Requirements

1. On Private Property

a. The operator of a mobile food vehicle operating on a privately owned parcel shall obtain prior written permission from the property owner and shall have an original signed copy of such permission available at all times while the mobile food vehicle is in operation on the property.

b. A mobile food vehicle shall be parked on a paved surface outside any designated fire lane and outside any parking or loading space that is required for the principal use on the property.

i. Mobile food vending operations shall not reduce the available parking on the property below the minimum number of parking spaces required to serve the existing use(s) on the lot.

ii. For a property that is nonconforming with respect to parking, mobile food vending operations shall not reduce the total existing amount of parking on the lot.

c. Unless otherwise approved pursuant to Section XI-10-13.18(G)(1), a mobile food vehicle shall be parked a minimum of 15 feet from a driveway curb cut while in operation.

2. In Public Right-of-Way

a. A mobile food vehicle operating in the public right-of-way shall be parked in a legal parking space and shall comply with all City parking regulations at all times while in operation.

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b. A mobile food vehicle may only serve customers from an adjacent sidewalk or the side of the vehicle closest to the curb and shall not serve customers from the side of the vehicle closest to the motorized travel lanes of the street.

3. In Public Parks and Open Spaces

a. The location and siting of mobile food vending operations within a public park or open space shall be subject to the approval of the City of Milpitas Recreation and Community Services Department, through the Minor Site Development Permit or Special Event Permit process as required per Section XI-10-13.18(C)(2)(a) or (b).

b. A mobile food vehicle operating within a public park shall be parked in a legal parking space on a paved surface outside any designated fire lane.

4. Separation from Other Uses.

a. A mobile food vehicle in operation shall be located a minimum of 150 feet from any existing restaurant.

b. A mobile food vehicle in operation shall be located a minimum of 150 feet from a freeway on- or off-ramp.

E. Site Design Standards

1. Parking

a. For one mobile food vehicle operating on private property or in a public park, no parking shall be required to serve the mobile food vending use. The mobile food vehicle shall comply with Subsection XI-10-13.18(D)(1)(b) with respect to parking for other existing uses on a lot.

b. For mobile food parks, one parking space shall be required per 2.5 seats provided on site for customers, plus one parking space per 60 square feet of lot area dedicated to the mobile food vending operation (see Table 53.09-1). Such parking shall be provided in addition to any required parking serving other existing uses on the lot.

2. Access and Circulation

a. All mobile food vending operations shall be located so as not to impede safe movement of vehicular, bicycle or pedestrian traffic, and to maintain a clear line of sight for vehicles, bicycles and pedestrians.

b. No mobile food vehicle shall obstruct access to or circulation through any parking lot, or access to any public sidewalk or alley.

3. Seating Areas

a. For mobile food vehicles operating in the public right-of-way, on-site seating (including tables, chairs, canopies, umbrellas, or similar amenities) shall not be permitted.

b. For one mobile food vehicle operating on private property, the site plan submitted for Minor Site Development Permit review per Subsection XI-10-13.18(C)(1)(a) shall show all proposed temporary 347
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amenities and structures for on-site seating and dining. For mobile food parks, the site plan submitted for Minor Conditional Use Permit review per Subsection XI-10-13.18(C)(1)(b) shall show all proposed temporary and permanent amenities and structures for on-site seating and dining.

c. Mobile food vending operations requiring a Special Event Permit shall be subject to the requirements and procedures in Section 15 of this Chapter for seating, dining areas and similar amenities.

4. Restrooms

a. For one mobile food vehicle operating on private property or for mobile food vehicles operating in the public right-of-way:

i. If the vehicle operates in the same location on an ongoing basis, for at least one day per week and for more than one hour on each day of operation, the operator must have access to a restroom facility within 200 feet pursuant to the Health and Safety Code Section 114315. If the vehicle operates in the same location on an ongoing basis, for at least one day per week and for more than three consecutive hours on each day of operation, the operator must arrange and secure access to a restroom within 200 feet of the site that is available to customers and employees of the mobile food vehicle.

ii. A mobile food vehicle operator to whom Section XI-10-13.18(E)(4)(a)(i) applies shall submit to the City, concurrently with the permit application, a signed letter from the owner of the property on which the restroom is located to verify that the mobile food vending operation has access to the restroom for use by employees and customers (if required) during its hours of operation.

b. For mobile food parks, one single-stall, gender-neutral restroom shall be provided for every five mobile food vehicles operating on the site. In calculating the restroom requirement, fractional numbers shall be rounded down to the nearest whole number.

c. Mobile food vending operations requiring a Special Event Permit shall be subject to the requirements and procedures in Section 15 of this Chapter for restrooms.

F. Operational Standards and Requirements

1. Mobility of operations. Mobile food vehicles shall not connect to temporary or permanent on-site water, gas, electricity, telephone or cable sources.

2. Hours of operation. Unless otherwise approved pursuant to Section XI-10.13.18(G)(1), hours of operation for mobile food vending shall be between the hours of 7:00 am and 10:00 pm.

3. Parking and storage of mobile food vehicles. Outside of hours of active operations mobile food vehicles shall be removed from the operating site, whether on private property or in the public right-of-way.

Mobile food vehicles shall not be parked overnight at the location of operation.

4. Noise. Mobile food vending operations shall comply with the provisions of Milpitas Municipal Code Title V, Chapter 213 – Noise Abatement.

5. Signage. A mobile food vehicle may display signage permanently attached to or painted on the vehicle advertising its products and services. A mobile food vehicle may also place one (1) free-standing 348
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‘sandwich board’ sign within 10 feet of the vehicle that displays information such as the menu, prices, and specials of the day. Any free-standing signage shall be subject to the provisions of Section XI-10-24 of this chapter. No other signs or banners that are separate from the mobile food vehicle shall be placed at the operating site or within the public right-of-way.

6. Trash management and disposal.

a. For one mobile food vehicle operating on private property or in the public right-of-way, and for mobile food parks:

i. All mobile food vending operations shall provide separate and clearly marked receptacles for trash, recycling and/or compost (minimum size for each 32 gallons), according to the collection services available, at the operating site. Operators of mobile food vehicles shall properly dispose of all trash, recycling and/or compost generated by their operations daily.

ii. The operator of a mobile food vehicle shall keep the area within a 25-foot radius of the vehicle, including private property, sidewalks, and roadways, clean and free of paper, food waste and other refuse generated by the operation.

b. Mobile food vending operations requiring a Special Event Permit shall be subject to the requirements and procedures in Section 15 of this Chapter for trash management and disposal.

c. Mobile food vending operations, if using disposable food service ware for packaging and serving, shall use products that are recyclable or compostable. Use of polystyrene foam food service ware is prohibited per Milpitas Municipal Code Title III, Chapter 8 – Prohibition of Expanded Polystyrene (EPS) Foam Food Service Ware.

G. Exceptions to Standards and Requirements

1. Exceptions or reductions to the Location and Siting Requirements, Site Design Standards, and Operational and Standards in Subsections XI-10-13.18(D) through (F) may be granted at the discretion of the Planning Director and the Fire Marshal based on site-specific conditions and subject to the following findings:

a. The proposed number, configuration, and operation of mobile food vehicles is generally consistent with the overall intent of these regulations;

b. The proposed mobile food vending activity will not be detrimental or injurious to property or improvements in the vicinity nor to the public health, safety, and general welfare.

H. Other Permits and Licenses Required

1. All mobile food vehicles operating within the City of Milpitas must obtain a permit for mobile food facilities from the Santa Clara County Department of Environmental Health. The valid County health permit shall at all times be displayed on the vehicle in a location visible to the public.

2. All mobile food vehicles operating within the boundaries of the City of Milpitas shall obtain a current City of Milpitas business license prior to establishing a vending location on public or private property or setting up operations. The license shall at all times be displayed on the vehicle in a location visible to the public.
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All mobile food vehicles must have current and valid vehicle registration clearly displayed on their license plates while vending at the operating site or in the public right-of-way.

SECTION 12. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 39
Title XI, Chapter 10, Section 39 (POS Park and Public Open Space District), Subsection XI-10-39.03 (POS Park and Public Open Space District – Conditional Uses) of the Milpitas Municipal Code is hereby amended to read as follows:

Section 39 - POS Park and Public Open Space District
XI-10-39.02 - Uses Permitted
The following are the principal permitted uses in a POS District:

39.02-1 Public parks and recreational facilities, with the exception of public community centers and public indoor sports centers.

39.02-2 Public trails.

39.02-3 Public community gardens.

The following are permitted as accessory uses in a POS District:

39.02-4 One mobile food vehicle, subject to approval of a Minor Site Development Permit pursuant to Subsection XI-10-57.03(B)(2) of this Chapter. See also Subsection XI -10-13.18.

39.02-5 Two or more mobile food vehicles operating together for a period of s even consecutive days or less, subject to approval of a Special Event Permit pursuant to Section 15 of this Chapter. See also Subsection XI - 10-13.18.

XI-10-39.03 - Conditional Uses
The following uses may also be permitted if their location is first approved by the Planning Commission, as provided for in Section 57, after considering a recommendation from the Parks, Recreation, and Cultural Resources Commission:

39.03-1 Public community centers and public indoor sports centers.

39.03-2 Day care centers.

39.03-3 Public utility facilities.

39.03-4 Radio or television transmitters.

SECTION 13. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 53
Title XI, Chapter 10, Section 53 (Off-Street Parking Regulations), Subsection XI-10-53.09 (Off-Street Parking Required by Land Use), Table 53.09-1 (Number of Parking Spaces Required) of the Milpitas Municipal Code is hereby amended to read as follows:
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Table 53.09-1
Number of Parking Spaces Required
Use Minimum Parking Spaces Required
A. Commercial Uses
Commercial Services1 (floral shops, barber shops, dry
cleaners, Laundromats, photocopy shops)
1 per 200 sq. ft.

Furniture and appliance stores and other bulky item
retail
1 per 350 sq. ft.

General Retail and Convenience Stores 1 per 200 sq. ft.

Mortuary, funeral parlor 1 per 4 seats and 1 per employee Plant nursery 1 per 200 sq. ft.

B. Entertainment and Recreation
Arcade and amusement 1 per 200 sq. ft.

Billiards 1 per 200 sq. ft.

Bowling Alleys including incidental accessory uses
(eating and drinking, billiards, etc.)
6 per alley or lane
Clubs and Lodges 1 per 200 sq. ft.

Commercial Athletic Facility (indoor) 1 per 150 sq. ft.

With outdoor or indoor sports courts
Small courts (tennis, badminton) 2 per court plus required parking for other uses on site.

Large courts (basketball, volleyball) 5 per court plus required parking for other uses on site.

Golf Course 6 per hole plus parking for ancillary uses Miniature Golf 1.25 per tee, plus 1 per employee
Motion Picture Theater (indoor) 1 per 3.5 seats
Nightclub 1 per 30 sq. ft.

C. Health and Veterinarian Uses
Convalescent Homes 1 per 2 beds or 1 per 1,000 sq. ft, whichever is greater
Hospital 1 per bed or 1 per 220 sq. ft., whichever is greater Kennel, indoor 1 per 1,000
Massage Establishments Two per treatment room or if no treatment room, one per 2 chairs or 2 tables
Medical and dental Clinic and Office 1 per 225 sq. ft.

Veterinary Clinic and Animal Grooming 1 per 250 sq. ft.

D. Industrial Uses
Distribution
Manufacturing
Warehousing
1 per 1,500 sq. ft.

Mini Storage 1 per 5,000 sq. ft., plus 1 per resident manager Wholesale 1 per 500 sq. ft.

Research and Development
Medical Laboratories
High employee demand uses
1 per 300 sq. ft.

Office space within an industrial building (to be
combined with categories above)
1 per 350 sq. ft.
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E. Lodging
Extended Stay Hotels 0.7 per guest room or unit5
Hotels 0.7 per guest room5
Motels 0.7 per guest room5
F. Professional Offices, Financial Institutions and Related Uses Automated Teller Machine (free standing) 2 per machine Financial institutions (banks, savings and loans, etc.) 1 per 180 sq. ft.

Offices, administrative and business services 1 per 240 sq. ft.

G. Public, Quasi-Public and Assembly Uses
Adult Day Care 1 per 500 sq. ft.

Auditoriums and theaters and places of meeting and
assembly
1 per 4 seats
Child Care Uses2, 3:

Day Care School 1 per classroom or 1 per 500 sq. ft., whichever is greater.

Small family child care home Same as required for underlying residential use Large Family Child Care Home and Child Care
Centers
1 per 1.5 employees
Community Center 1 per 4 fixed seats, or 1 per 6 linear feet of seating, plus 1 per 200 square feet of area without seating
but designed for meeting or assembly by guests,
plus 1 per 500 sq. ft. of outdoor area developed for
recreational purposes
Museums 1 per 400 sq. ft.

Public Utilities 1 per 400 sq. ft.

Religious Institutions 1 per 5 seats in the main area of assembly plus parking for classrooms and offices in this table.

Where there are no seats, then 1 seat equals 7 sq. ft.

Educational Institutions:

School-elementary (K-8 Private) 1 per classroom, plus 1 per 240 sq. ft. of office School-secondary (9-12 Private) 1 per classroom, plus 1 per 240 sq. ft. of office, plus 1 per 5 students
Vocational School, including business, professional,
technical and trade
1 per 200 sq. ft.

Instructional Studios (Dance, Yoga) 1 per 150 sq. ft.

Private instruction, personal enrichment (tutoring) 1 per instructional area or classroom, whichever is greater. No fewer than 3 spaces.

Stadiums and arenas 1 per 4 seats
H. Restaurants or Food Service
Banquet facilities See restaurants below
Bars, Drinking Establishments 1 per 30 sq. ft.

Drive thru See "Vehicle Related Uses" section.

Restaurants:

Sit down:

Indoor and outdoor: 1 per 39 square feet of dining area.

Take out: 1 per 2.5 seats (indoor/outdoor) plus 1 per 60 sq. ft.

GFA for the ordering or take out area.
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32 Ordinance No. XX.XXX

Mobile Food Parks 1 per 2.5 seats provide for on-site dining, plus 1 per 60 sq. ft. of lot area dedicated to mobile food
vending.

I. Residential Uses
Single Family and Duplexes:
3 bedrooms or fewer 2 per unit4
4 or more bedrooms 3 per unit, plus 1 per each additional bedroom4 Multi-Family (R3—R5 zones):

Studio 1 covered per unit
1 bedroom 1.5 covered per unit
2—3 bedrooms 2 covered per unit
4 or more bedrooms 3 per unit, plus 1 additional space for each additional bedroom (at least two covered).4
Guest parking
Projects with Parking structures 15% of the total required, may be uncovered Projects with Private garages 20% of the total required, may be uncovered Bicycle parking 5% of the total required
Boarding houses, dormitories, sororities and
fraternities
1 per each room rented
Live-Work Units Single family and duplexes parking requirements shall apply, plus 1.5 for the commercial component
Mixed Use buildings or sites
Residential use
Studio 1 covered per unit
1 bedroom 1.5 covered per unit
2—3 bedrooms 2 covered per unit
4 or more bedrooms 3 per unit, plus 1 additional space for each additional bedroom (at least two covered).4
Guest parking
Projects with Parking structures 15% of the total required, may be uncovered Projects with Private garages 20% of the total required, may be uncovered Bicycle parking 5% of total required
Commercial use
Ground Floor Retail 1 per 250 sq. ft.

Office If building is 1,000 sq. ft. or smaller: 1 per 250 sq. ft.

If building is larger than 1,000 sq. ft.: 3.3 per 1,000 sq. ft.

Short-Term Rentals 1 per unit
Other uses Refer to specific uses within this table
Bicycle parking 5% of total required
Mobile Homes Refer to Section 13.07, Mobile Homes
Senior Housing 1 per unit plus 2 per manager's unit
Single Room Occupancy (SRO) 1 per unit
J. Vehicle Related Uses
Auto rental agency 1 per 400 sq. ft. plus 1 per rental vehicle Auto repair (tire, oil change, smog check, etc.) 3 per service bay 353
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33 Ordinance No. XX.XXX

Car Wash 1 per 200 sq. ft. of building area and reservoir space outside of building equal to two (2) times the
maximum capacity of facility
Gas & Service Stations:

With Retail 1 per 200 sq. ft.

With Auto Repair 3 per service bay
Auto dealerships:

Sale or lease of vehicle 1 per 200 sq. ft. of showroom Office 1 per 200 sq. ft.

With Service Bays 3 per service bay
Window service or drive-thru in conjunction with any
other use
The required parking for primary use (restaurant, or
other use providing window service) plus queuing
of 5 vehicles which do not interfere with any on-site
parking spaces

1 Refer to Subsection 2.03, Definitions, of this Chapter for a full description of "Commercial Services." 2 For loading and unloading: One (1) parking space per six (6) children up to five (5) spaces and thereafter one (1) space per ten (10) children. Driveways, garage aprons and street frontage may be counted if appropriate permits are first received when calculating spaces for childcare homes. Tandem spaces are prohibited.
3 Exceptions for Child Care Requirements: The parking and loading/unloading requirements for childcare facilities may in the Planning Commission's discretion be reduced, based on an empirical study (provided by the applicant) which establishes no adverse effects will occur as a result. The required number of loading/unloading spaces may be reduced without a study by one (1) space for each employee permanently assigned to load and unload children from vehicles. 4 Applicable to new and existing projects being remodeled resulting in additional bedrooms submitted for approval after April 7, 2009.

Existing projects or projects either entitled or submitted active planning applications prior to April 7, 2009 shall use the parking regulations in effect at the time of entitlement or application submittal. For R4, R5, MXD/MXD2/MXD3 zones, 15% guest parking is legal and conforming for projects entitled or active planning applications submitted prior to April 7, 2009. 5 Refer to Subsection XI-10-53.15, Parking Standards for Hotels and Motels, of this Chapter for allowed reductions to minimum parking requirements.

SECTION 14. SEVERABILITY
The provisions of this Ordinance are separable, and the invalidity of any phrase, clause, provision, or part has no effect on the validity of the remainder.

SECTION 15. EFFECTIVE DATE AND POSTING
In accordance with Section 36937 of the Government Code of the State of California, this Ordinance takes effect 30 days from the date of its passage. The City Council hereby directs the City Clerk to cause this Ordinance or a summary thereof to be published in accordance with Section 36933 of the Government Code of the State of California.
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CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Second Reading of Ordinance No. 312 of the City Council of the City of Milpitas Adding Section 3.5 (“Regulation of Lobbying Activities”) to Chapter 310 (“Open Government Ordinance”), of Title I (“Administration”) of the Milpitas Municipal Code (The “Code”) and Modifying Section I-310-3.160 of the Code (Staff Contact: Michael Mutalipassi, City Attorney, 408-586-3040)
Category: Leadership and Support Services
Meeting Date: 6/21/2022
Recommendation: Move to waive the second reading and adopt Ordinance No. 312 adding Section 3.5 (“Regulation of Lobbying Activities”) to Chapter 310 (“Open Government Ordinance”), of Title I (“Administration”) of the Milpitas Municipal Code (the “Code”) and Modifying Section I-310-3.160 of the Code).

Background:

This Ordinance was introduced at the June 7, 20221 City Council meeting. The Council requested a minor edit, the removal of section I-310-3.5.130 subsection (e). The Ordinance is now ready for its second reading and adoption.

Fiscal Impact:

De minimus.

California Environmental Quality Act:

The action is not considered a project under CEQA as there will be no direct, or reasonably foreseeable indirect physical change in the environment.

Recommendation:

Move to waive the second reading and adopt Ordinance No. 312 adding Section 3.5 (“Regulation of Lobbying Activities”) to Chapter 310 (“Open Government Ordinance”), of Title I (“Administration”) of the Milpitas Municipal Code (the “Code”) and Modifying Section I-310-3.160 of the Code)

Attachment:

Ordinance No. 312 adding Section 3.5 (“Regulation of Lobbying Activities”) to Chapter 310 (“Open Government Ordinance”), of Title I (“Administration”) of the Milpitas Municipal Code (the “Code”) and Modifying Section I- 310-3.160 of the Code)

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Ordinance No. ___
1 REGULAR

NUMBER: 312

TITLE: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MILPITAS ADDING SECTION 3.5 (“REGULATION OF LOBBYING ACTIVITIES”) TO CHAPTER 310 (“OPEN GOVERNMENT ORDINANCE”), OF TITLE 1
(“ADMINISTRATION”) OF THE MILPITAS MUNICIPAL CODE (THE “CODE”) AND MODIFYING SECTION I-310-3.160 OF THE CODE

HISTORY: This Ordinance was introduced (first reading) by the City Council at its meeting of June 7, 2022, upon motion by Councilmember Dominguez and was adopted (second reading) by the City Council at its meeting of _______________, upon motion by ____________________________. The Ordinance was duly passed and ordered published in accordance with law by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:

________________________________ __________________________ Wendy Wood, City Clerk Rich Tran, Mayor

APPROVED AS TO FORM:

________________________________
Michael Mutalipassi, City Attorney

BE IT ORDAINED BY THE CITY OF MILPITAS AS FOLLOWS:

WHEREAS, the citizens of Milpitas have a right to know the identity of interests which attempt to influence decisions of City government, as well as the means employed by those interests; and
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2 WHEREAS, complete public disclosure of the full range of activities by and financing of lobbyists and those who employ their services is essential to the maintenance of citizen confidence in the integrity of City government; and
WHEREAS, it is in the public interest to ensure that lobbyists do not misrepresent facts, misrepresent their positions, or attempt to deceive a City official through false communications; do not place a City official under personal obligation to themselves or their clients; and do not represent that they can control the actions of any City official; and, WHEREAS, it is in the public interest to adopt this section to ensure adequate and effective disclosure of information about efforts to lobby City government.

NOW, THEREFORE, the City Council of the City of Milpitas does ordain as follows:

SECTION 1. RECORD AND BASIS FOR ACTION : The City Council has duly considered the full record before it, which may include but is not limited to such things as the City staff report, testimony by staff and the public, and other materials and evidence submitted or provided to the City Council. Fu rthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

SECTION 2 AMENDMENT OF MILPITAS MUNICIPAL CODE: That Section 3.5 (“Regulation of Lobbying Activities”) of Chapter 310 (“Open Government Ordinance”), of Title 1 (“Administration”) of the Milpitas Municipal Code is added to read as follows:

Section 3.5 - Regulation of Lobbying Activities
Sections
I-310-3.5.10 Purpose
I-310-3.5.20 Interpretation
I-310-3.5.30 Definitions
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3 I-310-3.5.40 Registration
I-310-3.5.50 Annual registration renewal
I-310-3.5.60 Termination of lobbyist status
I-310-3.5.70 Active status
I-310-3.5.80 Registration fees
I-310-3.5.90 Required registration information
I-310-3.5.100 Quarterly reports
I-310-3.5.110 Records retention
I-310-3.5.120 Lobbyist identification
I-310-3.5.130 Prohibitions
I-310-3.5.140 Gifts
I-310-3.5.150 Enforcement
I-310-3.5.160 Injunction
I-310-3.5.170 Practice restrictions
I-310-3.5.180 Exemptions
I-310-3.5.190 Lobbyists on Behalf of the City
I-310-3.5.10 Purpose
The purpose of this chapter is to impose registration and disclosure requirements on those engaged in efforts to influence the decisions of City policy makers for Compensation. Disclosure of lobbyists’ identities and activities fosters public confidence in government officials by making government decision -making more transparent to the public. Additionally, the disclosure and registration requirements ensure that City Officials are made aware of the interests that Lobbyists represent when the officials are lobbied.
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4 I-310-3.5.20 Interpretation
Unless the term is specifically defined in this chapter or the contrary is stated or clearly appears from the context, the definitions set forth in Government Code section 81000 et seq., shall govern the interpretation of this chapter.

I-310-3.5.30 Definitions
For the purposes of this chapter, the following definitions shall be applicable:
(a) “Activity Expense” means any payment made by a Lobbyist to or directly benefiting any City Official, City Official-elect or member of his or her immediate family. Activity Expenses include Gifts, honoraria, consulting fees, salaries and any other form of Compensation, but do not include campaign contributions. (b) “Administrative Action” means the proposal, drafting, development, consideration, advocacy or recommendation of any rule, regulation, agreement or contract, permit, license or hiring action.
(c) “At the behest” means at the specific direction of, or at the personal request or suggestion of, or with the express prior consent of, any elective City Official, City Official -elect or candidate for elective City office.
(d) “City Official” means any public official, or City employee who participates in the consideration of any Legislative Action or Administrative Action other than in a purely clerical, secretarial or ministerial capacity. It shall also include any City board or commission member, or City representative to any joint powers authority to which the City is a party, and any consultant to the City.
(e) “Client” means a Person who is represented by a Lobbyist. 359
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5 (f) “Compensation” includes, but is not limited to, money of any denomination or origin; goods or services or anything of value, delivered or rendered; commissions related to the purchase or sale of real property, or a contract or promise therefor; or promises to perform or provide services or contractual arrangements or awards. (g) “Contact” means attendance at a meeting with a City Official or City Official-elect, or any direct communication with a City Official or City Official -elect, whether oral, electronic or in writing, including, but not limited to communication through an agent, associate or employee, for the purpose of engaging in Lobbying activity. (h) “Fundraising Activity” means soliciting a contribution; hosting or sponsoring a fundraising event; or hiring a fundraiser or contractor to conduct any event designed for political fundraising at which contributions for any City Official, candidate for elective City office or any controlled committee of an elected City Official or candidate for City office or for any political action committee, political party or candidate for elective office of a governmental Organization are solicited, delivered or made. (i) “Gift” means gift as defined in the Califo rnia Political Reform Act, Government Code Section 81000 et seq., as amended from time to time.
(j) “Independent Expenditure” means an expenditure made by any Person, including a payment of public moneys by a state or local governmental agency, in connection with a communication which expressly advocates the election or defeat of a clearly identified candidate or the qualification, passage or defeat of a clearly identified measure, or taken as a whole and in context, unambiguously urges a particular result in an election but which is not made to or at the behest of the affected candidate or committee. 360
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6 (k) “Influencing” means the purposeful communication, either directly or through agents, promoting, supporting, modifying, opposing, causing the delay or abandonment of conduct, or otherwise intentionally affecting the behavior of a City Official or official - elect, by any means, including, but not limited to, providing or using persuasion, information, incentives, statistics, studies or analyses. (l) “Intermediary” means a Person who makes a campaign or officeholder contribution on behalf of another Person. A Person is an Intermediary for a contribution if the recipient of the contribution would consider that Person to be the contributor without the disclosure of the identity of the true source of the contribution. A Lobbyist acts as an Intermediary if the Lobbyist makes a contribution on behalf of another Person, and that other Person is acknowledged as the contributor, and the Lobbyist is reimbursed for the contribution. (m) “Legislative Action” means the drafting, introduction, consideration, modification, enactment or defeat of any resolution, ordinance, amendment thereto, report, nomination, or other action of the Mayor, City Council, any City board, committee, or commiss ion or any joint powers authority of which the City is a party, acting in its official capacity, or the granting, approval, or amendment of contracts or agreements to which the City is a party by any of the foregoing.
(n) “Lobbying” is the Influencing or atte mpting to influence a Legislative Action or Administrative Action of the City.
(o) “Lobbyist,” unless exempt under subsection (p) of this section, means:
(1) Contract Lobbyist: A Person who engages in Lobbying on behalf of one or more Clients (acting individually or through agents, associates, employees or contractors) and who has received or has entered into an agreement for Compensation of one thousand dollars 361
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7 ($1,000.00) or more, or equivalent nonmonetary Compensation (“threshold Compensation”) for engaging in Lobbying during any consecutive three-month period; (2) Business or Organization Lobbyist: Any business or Organization, whose owner(s), officer(s) or employee(s) carry out Lobbying on its behalf, in an aggregate amount of ten hours or more within any consecutive twelve (12) -month period, whether or not such officers or employees are specifically compensated to engage in Lobbying; provided, that the acti vities of officers shall be considered Lobbying only if those officers receive Compensation by the business or Organization beyond reimbursement for their reasonable travel, meals or incidental expenses; or (3) Expenditure Lobbyist: A Person who makes payment s or incurs expenditures of five thousand dollars ($5,000.00) or more during any calendar year in connection with carrying out public relations, advertising or similar activities with the intent of soliciting or urging, directly or indirectly, other Persons to communicate directly with any City Official in order to attempt to influence Legislative Action or Administrative Action. The five-thousand-dollar ($5,000.00) threshold shall not include: (A) Compensation paid to Contract Lobbyists or employees for Lo bbying; or (B) dues payments, donations, or other economic consideration paid to an Organization, regardless of whether the dues payments, donations or other economic consideration are used in whole or in part to lobby.
(p) Exemptions to “Lobbyist” include:
(1) Any public official acting in his or her official capacity or acting within the scope of his or her employment or appointment;
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8 (2) The Media, when limiting its action to the ordinary course of news gathering or editorial activity, as carried out by members of t he press. “Media” shall mean newspapers or any other regularly published periodical, radio or television station or network or information published on the Internet. This exemption does not apply to individuals conducting media activities when that individ ual would otherwise qualify as a Contract Lobbyist under this chapter;
(3) Persons reimbursed for only their reasonable travel, meals or incidental expenses, including, but not limited to, uncompensated members or directors of nonprofit Organizations, such as chambers of commerce;
(4) Persons whose communications regarding any Legislative Action or Administrative Action are solely limited to appearing at or submitting testimony for any public meeting held by the City or any of its agencies, offices, or department s, as long as the communications thereto are public records available for public review. Persons who appear or testify at public meetings and who otherwise qualify as Lobbyists due to other activities must register and disclose their Lobbying activities di rected toward City Officials, and must identify themselves and their Clients at public meetings, in the same manner and to the same extent such registration, disclosure, and identification is required of all other Lobbyists;
(5) Persons submitting bids or responding to requests for proposals, provided the provision of such information is limited to direct conversation or correspondence with the official or department specifically designated to receive such information; 363
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9 (6) Persons providing oral or written information pursuant to a subpoena or otherwise compelled by law or regulation, or in response to an official request; provided, that the request and response thereto are public records available for public review; (7) Designated representatives of a recognized employee Organization whose activities are limited to communicating with City Officials or their representatives regarding (A) wages, hours and other terms or conditions of employment, or (B) the administration, implementation or interpretation of an existing employment agreement; (8) Persons who are professionally licensed by a State licensing Organization pursuant to the California Business and Professions Code, including, but not limited to, attorneys, architects and engineers; provided however, the exemption for attorneys shall only be applicable if the attorney is engaged in the practice of law with respect to the subject of the employment;
(9) Board members or employees of nonprofit 501(c)(3) corporations, unless the nonprofit Organization is Lobb ying for a specific project, issue or Person for which the Organization has received Compensation or a contribution to lobby for or against a specific project, issue or Person;
(10) Members of neighborhood associations;
(11) A Person hired by the City for work perf ormed on behalf of the City, or a Person who prepares documents for consideration by the City under the California Environmental Quality Act;
(12) The owner of a business whose attempts to influence governmental action are on behalf of the business and:
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10 (i) The owner or business has not retained a Person to engage in Lobbying activity on behalf of the owner or business; or
(ii) Officers or employees of the business (not including the owner) have not engaged in Lobbying activity on behalf of the owner or business. (iii) This exemption applies only to the threshold for becoming a Business or Organization Lobbyist as defined under section I-310-3.5.30(o), subsection (2). An owner of a business who meets this exemption is subject to the requirements of this chapter if he or she meets the definition of Contract Lobbyist or Expenditure Lobbyist as defined under subsections (1) and (3) of section I-310-3.5.30(o), respectively;
(13) Persons who meet with City Officials solely to lodge “whistleblower” complaints relating to alleged im proper governmental activity such as mismanagement, waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
(14) Persons whose communications with City Officials are solely in connection with the administration of an existing contract or agreement between the Person and the City; or
(15) Persons who meet with the City Attorney, or City staff regarding any claim or litigation matter, negotiation of any agreements or contracts where the City is a party, or the requirements or interpretation of this chapter.
(q) “Organization” means any Person that is not an individual. (r) “Person” means any individual, domestic or foreign corporation, for -profit or nonprofit entity, firm, association, syndicate, union, chamber of commerce, join t-stock company, 365
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11 partnership of any kind, limited liability company, common-law trust, society, or any other group of Persons acting in concert.

I-310-3.5.40 Registration
Lobbyists shall register with the City Clerk within fifteen (15) days after qualifying as a Lobbyist under Milpitas Municipal Code section I -310-3.5.30. Should a Lobbyist have a change to its registration information, including, but not limited to, the Cit y Legislative Action or Administrative Action as to which the Lobbyist has been engaged, after the annual registration period, such Lobbyist shall file an amended registration with the City Clerk within fifteen (15) days of such change with the changed information.

I-310-3.5.50 Annual registration renewal
A Lobbyist shall renew his or her registration by January 15th of each year unless he or she has terminated their status as a Lobbyist pursuant to Milpitas Municipal Code section I -310-

3.5.60 by such date.

I-310-3.5.60 Termination of lobbyist status
After initial registration, annual registration renewal will not be required if a declaration attesting to the termination of Lobbying services within the City has been filed with the City Clerk no later than January 15th.

I-310-3.5.70 Active status
All registrations, renewals and terminations will be deemed filed on the date received by the City Clerk. A lobbyist shall be deemed active for the duration of the year of registration ending December 31, unless a declaration attesting to termination of lobbying services within the City is filed.

I-310-3.5.80 Registration fees
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12 Persons subject to the registration requirements of this ordinance shall pay an annual fee set by resolution of the City Council.
(a) The applicable registration fee is due at the time of registration or registration renewal.

Payment will be deemed delinquent thereafter. Delinquency fees may be assessed as specified in subsection (c) below, if payment occurs after the due date. (b) In addition to the annual fee, each registrant shall pay a fee set by resolution of the City Council per client for whom lobbying is undertaken for compensation in excess of five hundred dollars ($500.00). The fees for clients as of the date of initial registration shall be submitted with the registration. The fees for subsequent clients shall be due and submitted within fifteen (15) days of such change with the changed information pursuant to section I-310-3.5.30.
(c) A fine of twenty-five dollars ($25.00) per day for delinquent fees, up to a maximum of five hundred dollars ($500.00), will be assessed until in compliance with the registration provisions herein.

I-310-3.5.90 Required registration information
The initial registration shall contain the name, business address, telephone, email addresses and if applicable, business license of all persons required to register pursuant to this Chapter, including the names of all owners of sole proprietorships and partnerships of fewer than ten (10) persons. If the registrant is a corporation, limited liability company, or limited liability partnership, it shall also include the names of the president, secretary, chief financial officer, managing members, and agent for service of process, if any. Any business or organization registering under this act shall also briefly describe the nature of its business or organization and contact individual. In addition to this information, the report shall contain the following:
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13 (a) Contract Lobbyists: The name, business address, telephone number of each Client, the nature of each Client’s business and the item(s) of Legislative Action or Administrative Action the Lobbyist is seeking to influence on behalf of the Client; and the name of each Person employed or retained by the Lobbyist to lobby on behalf of each Client. (b) Business or Organization Lobbyists: The names of owners, officers or employees conducting Lobbying activities and the item(s) of Legislative Action or Administrative Action the Lobbyist is seeking to influence.
(c) Expenditure Lobbyists: The item(s) of municipal Legislative Action or Administrative Action the Lobbyist is seeking to influence.
(d) Payment received by the reporting Lobbyist for services as a consultant or in any other capacity for services rendered to a City agency, any City Official or any City Official- elect or their controlled committees, or ballot measure committee within the previous calendar year. The dates of payment and name of each payer shall be included. (e) Campaign and officeholder contributions that a Lobby ist made, delivered or acted as an Intermediary for, to an elected City Official or candidate for City office made during the preceding calendar year. A Person is an Intermediary for a contribution if the recipient of the contribution would consider that P erson to be the contributor without the disclosure of the identity of the true source of the contribution. Also, a Lobbyist acts as an Intermediary if the Lobbyist makes a contribution on behalf of another Person, and that other Person is acknowledged as t he contributor, and the Lobbyist is reimbursed for the contribution.
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14 (f) Campaign and officeholder contributions made at the behest of an elected City Official or candidate to any other elected public official or candidate for public office during the preceding calendar year.
(g) All Independent Expenditures made for or on behalf of a City Official or candidate for City office made during the preceding calendar year.
(h) Fundraising Activity for any City Official, candidate for elective City office or any controlled committee of the elected City Official or candidate for City office or for any political action committee, political party or candidate for elective office of a governmental Organization made at the behest of a City Official during the preceding calendar year. Required information and disclosures must include the name of the City Official, candidate, committee or party on whose behalf the Lobbyist engaged in fundraising activities, or delivered or acted as Intermediary for one or more contributions. The information and disclosures must also include the name of the City Official requesting the Fundraising Activity, the date of the Fundraising Activity, the name of the contributors and the amount of contributions raised, delivered and/or made in connection with which the Lobbyist acted as an Intermediary. (i) Donations to for profit or nonprofit Organizations made at the behest of a City Official or candidate for elective City office of any contribution or payment of more than one thousand dollars in the aggregate made during the preceding calendar year. (j) Contacts made with City Officials or City Officials-elect during the preceding calendar year for the purpose of influencing or attempting to influence Legislative Action or Administrative Action. Contact information must include a brief description of the item(s) of Legislative Action or Administrative Action the Lobbyist is seeking to 369
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15 influence, the date(s) of Contact, the method(s) of Contact, and the number of Contacts in the following ranges: (one), (two to five), (six to ten) or (eleven or more). (k) Activity Expenses such as payments that directly benefit any City Official, City Official-elect or member of his or her immediate family or domestic partner made during the preceding calendar year. Activity E xpenses include Gifts, honoraria, consulting fees, salaries and other forms of Compensation, but do not include campaign contributions.
(l) The name, address, title and telephone number of the Person responsible for preparing the report, together with that individual’s signature attesting to the authority of the signatory and the accuracy and truthfulness of the information submitted.

I-310-3.5.100 Quarterly reports
Quarterly reports for the prior three-month period are to be filed with the City Clerk on or before July 15th, October 15th, January 15th, and April 15th of each year, whether or not any Lobbying activities have occurred during such period. Electronic reporting may also be permitted by the City Clerk. Each quarterly report shall contain the same information as required to be disclosed in the initial registration, for those activities occurring in that period. If a Lobbyist has terminated all Lobbying activities during such period, the Lobbyist may file a declaration of termination with the quarter ly report. The final quarterly report shall include disclosure of any Lobbying activities during the period of termination.

I-310-3.5.110 Records retention
All information, reports and statements required to be filed under the provisions of this chapter shall be compiled and preserved by the City pursuant to the City’s records retention schedule and shall be open to public inspection. Copies of the records pertaining to the above- 370
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16 required reports shall be preserved by the Lobbyist for inspection and audit for a period of four years from date of production.

I-310-3.5.120 Lobbyist identification
When appearing in a Lobbying capacity at any meeting with a City Official or at a public meeting of the City Council or any other City board, commission or hearing, a Contract Lobbyist shall identify himself/herself and the Client(s) on whose behalf he/she is appearing, and a Business or Organization Lobbyist shall identify himself/herself and the business or Organization he/she represents.

I-310-3.5.130 Prohibitions
It shall be unlawful for any Lobbyist to commit any of the following acts:
(a) Unregistered Lobbying: Acting as a Lobbyist in the City without having registered in compliance with this chapter, or knowingly to employ a Person or entity to serve as a Lobbyist when such Person is not registered pursuant to this chapter. (b) Unauthorized Communications: Sending or causing any communication to be sent to any City Official in the name of any nonexistent Person or in the name of an existing Person without the express or implied consent of such Person. (c) Indirect Violations: Attempting to evade the requirements of this chapter through indirect efforts or through the use of agents, associates, intermediaries or employees. (d) Creation of Obligations: Performing or sponsoring any act with the purpose and intent of placing any City Official under personal obligation to the Lobbyist. (e) Contingent Compensation: Compensation for Lobbying activity when the Compensation is directly dependent on the result of Legislative Act ion(s) or Administrative Action(s) that are the subject of the Lobbying activity. 371
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17 I-310-3.5.140 Gifts
It shall be unlawful for any Lobbyist to deliver or cause to be delivered any Gift to any City Official, and for any City Official to accept any Gift from a Lobbyist.

I-310-3.5.150 Enforcement
Persons or entities that violate this chapter may be subject to penalties as set forth in Milpitas Municipal Code sections I-1-4.09-1 to I-1-4.09-11.

I-310-3.5.160 Injunction
The City Attorney or his designee may seek injunctive relief in the courts to enjoin violations of or to compel compliance with the provisions of this chapter.

I-310-3.5.170 Practice restrictions
No Person who the City finds to have violated this chapter may act as a Lobbyist or otherwise attempt to influence municipal Legislative Actions or Administrative Actions for Compensation for one year after such finding of violation.

I-310-3.5.180 Exemptions
Any Person who in good faith and on reasonable grounds believes that he or she is not required to comply with the provisions of Milpitas Municipal Code section I-310-3.5.40 by reason of his or her being exempt under Milpitas Municipal Code section I-310-3.5.30(p) shall not be deemed to have violated the provisions of Milpitas Municipal Code section I-310-3.5.40 if, within fifteen (15) days after notice from the City, he or she either complies or furnishes satisfactory evidence to the City that he or she is exempt from registration.

I-310-3.5.190 Lobbyists on Behalf of the City
(a) Any lobbyist who contracts for economic consideration with the City of Milpitas to represent the City in matters before any local, regional, state, or federal administrative 372
Item # C17.

Ordinance No. ___
18 or legislative body shall file a public records report of their activities on a qu arterly basis with the City Clerk's office. This report shall be maintained by the City Clerk's office and not be exempt from disclosure. Each quarterly report shall identify all financial expenditures by the lobbyist, the individual or entity to which eac h expenditure was made, the date the expenditure was made, and specifically identify the local, state, regional or national legislative or administrative action the lobbyist supported or opposed in making the expenditure. The failure to file a quarterly re port with the required disclosures shall be a violation of this chapter. (b) No person shall be deemed a lobbyist on behalf of the City under subsection (a) of this section, unless that person receives or becomes entitled to receive at least $250 total compensation in any month for influencing legislative or administrative action on behalf of the City of Milpitas. No business or organization shall be deemed as a lobbyist under subsection (a) of this section unless it compensates its employees or members for their lobbying activities on behalf of the City of Milpitas, and the compensated employees or members have at least 25 separate contacts with local, state, regional or national officials for the purpose of influencing legislative or administrative action within any two consecutive months. "Total compensation" shall be calculated by combining all compensation received from the City of Milpitas during a month of lobbying activities on matters at the local, state, regional or national level. "Total number of contacts" shall be calculated by combining all contacts made during a two - month period on behalf of the City of Milpitas for all lobbying activities on matters at the local, state, regional or national level.
373
Item # C17.

Ordinance No. ___
19 (c) Funds of the City of Milpitas shall not be used to support any lobbying efforts to restrict public access to records, information, or meetings, except where such effort is solely for the purpose of protecting the identity and privacy rights of private citizens.

SECTION 3 AMENDMENT OF MILPITAS MUNICIPAL CODE: That section I-310-3.160 (“Lobbyists”) of Chapter 310 (“Open Government Ordinance”), of Title 1 (“Administration”) of the Milpitas Municipal Code is amended to read as follows:

I-310-3.5.190
Deleted by Ordinance #####.

SECTION 4. SEVERABILITY: The provisions of this Ordinance are separable, and the invalidity of any phrase, clause, provision or part shall not affect the validity of the remainder.

SECTIN 5. EFFECTIVE DATE AND POSTING: In accordance with Section 36937 of the Government Code of the State of California, this Ordinance shall take effect thirty (30) days from and after the date of its passage. The City Clerk of the City of Milpitas shall cause this Ordinance or a summary thereof to be published in accordance with Section 36933 of the Government Code of the State of California.

374
Item # C17.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Adopt a Resolution to Supersede Resolution 9145 to Add the Commemoration of India Independence Day as a Flag-raising Event at Cesar Chavez Plaza (Staff Contact: Renee Lorentzen, Director of Recreation and Community Services, 408- 586-3409)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 6/21/2022
Recommendation: Adopt a Resolution to Supersede Resolution 9145 to Add the Commemoration of India Independence Day as a Flag-raising Event at Cesar Chavez Plaza

BACKGROUND:

Pursuant to Milpitas Municipal Code Section I-600-2.30(3), the City Council may, by resolution, direct City staff to display Commemorative Flags as an expression of the City’s official sentiments by any of the following means: (i) display in lieu of the MIA/POW flag on one of the four City Hall Display Flag Poles located at the rear of City Hall adjacent to the pond, (ii) display in lieu of the flag of the State of California on one of the three flag poles located at Cesar Chavez Plaza, or (iii) display through ground level ceremonies at any of the following locations at the Civic Center complex or the City of Milpitas Community Center:

(1) City Hall Rotunda
(2) Area adjacent to pond at City Hall
(3) Cesar Chavez Plaza
(4) City Council Chambers

On September 7, 2021 City Council adopted Resolution No. 9102 directing staff to annually fly the City Event Celebration Flags and/or other Commemorative Flags for various upcoming Recreation and Community Services events in connection with and during periods (up to 30 days) of recognition for the following commemorative events: Black History Month, Cesar Chavez Birthday, Vietnamese Heritage Day, Public Safety Appreciation Day, LGBTQ Month, Philippine Independence Day, Juneteenth, Hispanic Heritage Month, Filipino American History Month, Eritrea Independence Day, and Native American History Month, in the Cesar Chavez Plaza. On May 3, 2022, City Council adopted Resolution No. 9145 to supersede Resolution Nr. 9102 by adding to the list of commemorative events, Mexican Independence Day.

ANALYSIS:

At the June 14, 2022 City Council meeting, through Announcements, Mayor Tran requested, and the City Council concurred by consent that staff bring forward an amendment to Resolution Nr. 9145. Since this item takes less than four (4) hours of staff time, staff is bringing forward for Council consideration an amendment to the Resolution directing staff to fly the Flag of India, in commemoration of India Independence Day on August

15. In accordance with the Municipal Code, a Commemorative Flag will be displayed for a period of time that is reasonable or customary for the subject that is to be commemorated, but no longer than 30 continuous days.

FISCAL IMPACT:

None.

California Environmental Quality Act (CEQA):

By the definition provided in the California Environmental Quality Act (CEQA) Guidelines Section 15378, this action does not qualify as a “project” for the purpose of CEQA. 375
Item # C18.

RECOMMENDATION:

Adopt a Resolution to Supersede Resolution 9145 to Add the Commemoration of India Independence Day as a Flag-raising Event at Cesar Chavez Plaza.

Attachment(s):

Draft Resolution

376
Item # C18.

Resolution No. ____
RESOLUTION NO. ___

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS DIRECTING

STAFF TO FLY COMMEMORATIVE FLAGS AT CESAR CHAVEZ PLAZA FOR

CITY-SPONSORED EVENTS

WHEREAS, on August 1, 2017 , the City Council (the “City Council”) of the City of Milpitas Adopted Ordinance No. 260.2 relating to the display of flags on City -owned property; and

WHEREAS, on April 3 , 2018 , the City Council (the “City Council”) of the City of Milpitas Adopted Resolution No. 9102 relating to the display of flags on City -owned property; and

WHEREAS, on May 3, 2022, the City Council (the “City Council”) of the City of Milpitas Adopted Resolution No. 9145 relating to the display of flags on City-owned property superseding Resolution No. 9102; and

WHEREAS, the City Council (the “City Council”) of the City of Milpitas intends this resolution to supersede Resolution No. 9145 relating to the display of flags on City -owned property; and

WHEREAS, pursuant to Milpitas Municipal Code Section I-600-2.30(3), the City Council may, by resolution, direct City staff to display Commemorative Flags as an expression of the City’s official sentiments by any of the following means: (i) display in lieu of the MIA/POW flag on one of the four City Hall Display Flag Poles located at the rear of City Hall adjacent to the pond, (ii) display in lieu of the flag of the State of California on one of the three flag poles located at Cesar Chavez Plaza, or (iii) display through ground level ceremonies at any of the following locations at the Civic Center complex or the City of Milpitas Community Center:

(1) City Hall Rotunda
(2) Area adjacent to pond at City Hall
(3) Cesar Chavez Plaza
(4) City Council Chambers; and
WHEREAS, the City of Milpitas sponsor s commemorative events, ceremonies and holidays annually in Cesar Chavez Plaza; and
WHEREAS, the City intends to fly certain Commemorative Flags in Cesar Chavez Plaza as part of the sponsored events, ceremonies and holidays, for certain periods; and WHEREAS, in accordance with the Milpitas Municipal Code, the Commemorative Flags shall be displayed for a period that is reasonable or customary for the subject that is to be commemorated, but no longer than 30 days; and
WHEREAS, the periods of Commemorative Flags as approved by this Resolution may occur concurrently; and
377
Item # C18.

Resolution No. ____
WHEREAS, during such instance, multiple Commemorative Flags, but no more than three flags, may be raised on a flagpole from the top to the bottom in chronological descending order for the period approved in this Resolution.

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

1. The City Council has considered the full record before it, which may include but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are in corporated herein by reference.

2. Pursuant to Milpitas Municipal Code Section I -600-2.30(3), the City Council hereby directs staff to fly the following Commemorative Flags in lieu of the flag of the State of California at Cesar Chavez Plaza on the following dates and date ranges, after which staff shall resume flying the flag of the State of California unless the City Council directs otherwise by further resolution:
 Black History Month – February 1 - 28,
 Cesar Chavez Birthday– March 31,
 Vietnamese Heritage Day – April 30,
 Public Safety Appreciation Day – May 15,
 Eritrea Independence Day – May 24,
 LGBTQ Pride Celebration – June 1 – 30,
 Philippine Independence Day – June 12,
 Juneteenth – June 19,
 India Independence Day – August 15,
 Hispanic Heritage – September 15 – October 15,
 Mexican Independence Day – September 16,
 Filipino American History Month – October 1 – October 31,  Native American Heritage and Culture Month – November 1 – 30.

PASSED AND ADOPTED this day of 2022, by the
following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:

Wendy Wood, City Clerk Rich Tran, Mayor

378
Item # C18.

Resolution No. ____
APPROVED AS TO FORM:

Michael Mutalipassi, City Attorney
379
Item # C18.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Accept Water and Wastewater Arrearage Grants from the Water State Board, Authorize a subsidy for residential accounts with an outstanding balance of 85 days and over and Approve a Budget Appropriation of $248,048 for Grants and $80,000 for Residential Utility Account Subsidy (Staff Contact: Lauren Lai, Finance Director, 408-586-3111)
Category: Consent Calendar-Leadership and Support Services

Meeting Date: 6/21/2022
Recommendation: (1) Accept Water and Wastewater Arrearage Grants from the Water State Board; (2) Authorize a subsidy for residential accounts with an outstanding balance of 85 days and over; and (3) Approve a budget appropriation of $248,048 for grants and $80,000 for residential utility account subsidy

Background:

On March 4, 2020, Governor Gavin Newsom proclaimed a state of emergency to exist in California as a result of the threat of COVID-19. It is the established policy of the State under Water Code section 106.3 that every human being has the right to safe, clean, affordable and accessible water adequate for human consumption, cooking, and sanitary purposes. In April 2020, a moratorium on discontinuance of water services was issued.

The moratorium was to expire on December 31, 2021.

Pursuant to the Governor’s moratorium, on March 2020 the Finance Department suspended the “Discontinuance of Residential and Non-Residential Service” provisions in City Municipal code Section VIII-1-

6.10. Water utility services were not shutoff due to non-payment, and penalties were not levied.

On December 7, 2021, Council approved extending the suspension of the Discontinuance of Residential and Non-Residential Service policy after the moratorium expired on December 31, 2021 to March 31, 2022. Starting with April 1st utility bills, the Finance Department re-instated penalty, tagging and shutting off delinquent customers.

Earlier this year, Staff applied for the California Water and Wastewater Arrearage Payment Program Grants (Grants) which would provide funds to assist utility customers with outstanding utility bills with service from March 2020 to June 2021.

Analysis:

The City received the Grants from the California State Water Board to relieve the community water and wastewater system residential and commercial customers of the accrued water and wastewater arrearages (outstanding balances from March 2020 to June 2021) during the COVID-19 pandemic. Total amount of water arrearages funding received was $148,013 which includes $28,379 for 13 commercial accounts, $115,323 for 194 residential accounts, and 3% administrative cost of $4,311. Total amount of wastewater arrearages funding received was $100,035 which includes $24,738 for 13 commercial accounts, $72,838 for 163 commercial accounts, and 3% administrative cost of $2,914. The water grant was applied to eligible accounts in March 2022 and the wastewater grant was applied to eligible accounts in June 2022. Both of these grants assist residential and commercial accounts by reducing their balances for the respective period.

Customer Outreach 380
Item # C19.

The City recognizes that water and wastewater services are essential and thus conducts extensive outreach in six (6) languages to utility customers and also offers payment plans to assist them in paying their bills.

The City’s outreach is comprehensive and goes above and beyond the State mandate with these extra efforts:
three (3) written notices, phone call(s), longer grace period to resolve outstanding balance before shutoff and offering payment plans. The City’s customer outreach entails the following:
 As required by the State grant, the City mailed the customers to notify them of the amount credited to their accounts and offered to enroll customers with the remaining debt into a payment plan.  Mailed the customers a “reminder letter” after the bill is outstanding for 23 days  Mailed the customers a “final letter” after the bill is outstanding for 65 days  Mailed a letter to customers with outstanding balances of 85 days and over, requesting updated customer contact information and offering payment plan
 Phone call and/or voice message alerting customers of outstanding balances, payment plan option and State Low Income Household Water Assistance Program (LIHWAP)

The table below summarizes the number of utility accounts as of June 10, 2022 that have outstanding balances of 85 days and over will be scheduled to be turned off each week based on the respective billing cycle of the accounts. As of June 10, 2022, 98.5% of all City utility accounts are current and/or not subject to the shutoff procedure. The total number of utility accounts with outstanding balances of 85 days and over is 265 accounts or 1.5% of all City utility accounts. The outstanding “85 days and over” balance owed to the City as of June 10, 2022 is $322,065, consisting of $170,147 for non-residential accounts and $151,918 for residential accounts.

Particulars Active
Non-Residential
Accounts
Active
Residential
Accounts
Total
(All Accounts)
TOTAL UTILITY ACCOUNTS 2,226 14,938 17,164
Number of Utility Accounts with Outstanding Balances
of 85 days and over
(% of Total Accounts)
19 (0.9%)
248

(1.6%)
265

(1.5%)
Total Amount Outstanding Balances of 85 days+ Due $ 170,147 $ 151,918 $ 322,065 Percentage (%) Residential vs. Non-Residential of
Outstanding Balances of 85 days and over
53% 47% 100%

Authorize Subsidy for Residential Accounts
The Utilities Subsidy Fund has a current balance of approximately $442,000 which is comprised of collected utility penalties. This Utility Subsidy Fund is used as the funding source for the on-going Milpitas Assistance Program (MAP) for low income qualified utility billing assistance. However, appropriating $80,000 from this Utility Subsidy Fund would allow Staff to administer a utility subsidy program. The eligibility and parameters of the program will be as follows:

1. Residential accounts outstanding with balances over 85 days as of June 10, 2022

2. Subsidize 50% of the residential outstanding balances of 85 days and over (as of June 10, 2022)

3. Require that the customer addresses all other outstanding balances via payoff or payment plan

4. Continue reminder notice, final notice and penalties for payment plan

5. Require any payment plan to be kept current with 5-day grace period

6. Require payment of future utility bills

7. Failure to comply with #5 and #6 prompts immediate shutoff procedures (reminder notice, final notice, phone call, tag and ultimately utility shutoff)

This policy and subsidy program is a one-time, short-term program that will enable residents to transition during this COVID recovery. Once the $80,000 appropriation is exhausted, the utility billing subsidy will end; however, 381
Item # C19.

qualified residents can continue to take advantage of on-going programs such as Milpitas Assistance Program (“MAP”) for utility assistance.

The proposed $80,000 appropriation will retain Utility Subsidy Fund balance to provide for the on-going Milpitas Assistance Program. While this is a customer-oriented program, there may be residents that do not take advantage of this subsidy program, and as such, Staff will follow the shutoff procedures which includes significant outreach, payment plan options and ultimately utility shutoff as necessitated.

Non-Residential Accounts
The City has provided assistance to small business via multiple programs including Community Development Block Grants (“CBDG”) and America Rescue Plan Act (“ARPA”) grants, applying the State water and wastewater grants for the respective outstanding utility balances, and providing over two (2) years of utility shutoff moratorium (suspending penalties and shutoff). Given the high outstanding balances and limited Utility Subsidy Fund balance, Staff will follow the utility shutoff procedures which includes significant outreach as described above including payment plan options and ultimately shutoff as necessitated.

Policy Alternative:

Alternative: Implement the City Municipal code Section VIII-1-6.10 “Discontinuance of Residential and Non-Residential Service” and restore the shut off process.

Pros: Collection of fee revenues and implement City municipal code.

Cons: Milpitas residents and small businesses may not have enough time to pay off the outstanding utility bill before potential shut off.

Reason not recommended: The City may consider quality of life to our residents and businesses; and provide program support and flexibility where possible during this pandemic.

Fiscal Impact:

The acceptance of both grants from the California State Water Board totaling $248,048 would assist customers and reduce the potential of utility revenue loss. The one-time residential account utility subsidy appropriation is $80,000.

California Environmental Quality Act:

The action being considered has no potential for causing a significant effect on the environment and is exempt from the California Environmental Quality Act (CEQA) Guidelines Section 15061 (b)(3). The action is also exempt under CEQA Guideline 15378(b)(4) as a governmental fiscal activity not involving a commitment to any specific project.

Recommendation:

1. Accept Water and Wastewater Arrearage Grants from the Water State Board;

2. Authorize a subsidy for residential accounts with an outstanding balance of 85 days and over; and

3. Approve a budget appropriation of $248,048 for grants and $80,000 for residential utility account subsidy Attachments:

1. Budget Change Form
382
Item # C19.

City of Milpitas, California

BUDGET CHANGE FORM

From* To*
Type of Change

Account

Amount

Account

Amount
Check one:

Budget Appropriation

Budget Transfer

400-3551
450-3551
109-2940

$148,013
$100,035
$80,000
400-9104209
450-9104209
109-9104209

$148,013
$100,035
$80,000

Accept Water and Wastewater Arrearage Grants from the Water State Board, Authorize a subsidy for residential accounts with an outstanding balance of 85 days and over and Approve a Budget Appropriation of $248,048 for Grants and $80,000 for Residential Utility Account Subsidy.

Background:

On March 4, 2020, Governor Gavin Newsom proclaimed a state of emergency to exist in California as a result of the threat of COVID-19. It is the established policy of the State under Water Code section 106.3 that every human being has the right to safe, clean, affordable and accessible water adequate for human consumption, cooking, and sanitary purposes. In April 2020, a moratorium on discontinuance of water services was issued. The moratorium will expire on December 31, 2021.

Pursuant to the Governor’s moratorium, on March 2020 the Finance Department suspended the “Discontinuance of Residential and Non-Residential Service” provisions in City Municipal code Section VIII-1-

6.10. Water utility services were not shutoff due to non-payment, and penalty and late fees were not levied.

On December 7, 2021, Council approved extending the suspension of the Discontinuance of Residential and Non-Residential Service policy after the moratorium expires on December 31, 2021 to March 31, 2022.

Starting with April 1st utility bills, the Finance Department re-instated penalty and late fees charges and tagging and shutting off delinquent customers.

Earlier this year, Staff applied for the California Water and Wastewater Arrearage Payment Program Grants (“Grants”) which would provide funds to assist utility customers with outstanding utility bills with service from March 2020 to June 2021.

Analysis:

The City received the “Grants” from the California State Water Board to relieve the community water and wastewater system residential and commercial customers of the accrued water and wastewater arrearages (outstanding balances from March 2020 to June 2021) during the COVID-19 pandemic. Total amount of water arrearages funding received was $148,013 which includes $28,379 for 13 commercial accounts, $115,323 for 194 residential accounts, and 3% administrative cost of $4,311. Total amount of wastewater arrearages funding received was $100,035 which includes $24,738 for 13 commercial accounts, $72,838 for 163 commercial accounts, and 3% administrative cost of $2,914. The water grant was applied to eligible accounts in March 2022 and the wastewater grant was applied to eligible accounts in June 2022. Both of these grants assist residential and commercial accounts by reducing their balances for the respective period.

The City’s outreach is comprehensive and includes phone calls and mailings as follows:
383
Item # C19.
 As required by the State grant, the City mailed the customers to notify them of the amount credited to their accounts and offered to enroll customers with the remaining debt into a payment plan.
 Mailed the customers a “reminder letter” after the bill is outstanding for 23 days  Mailed the customers a “final letter” after the bill is outstanding for 65 days  Mailed a letter to customers with outstanding balances of 85 days and over, requesting updated customer contact information and offering payment plan  Phone call and/or voice message alerting customers of outstanding balances and payment plan option

The table below summarizes the number of utility accounts as of June 10, 2022 that have outstanding balances of 85 days and over will be scheduled to be turned off each week based on the respective billing cycle of the accounts. The outstanding “85 days and over” balance owed to the City as of June 10, 2022 is $322,065, consisting of $170,147 for non-residential accounts and $151,918 for residential accounts.

Particulars Active
Non-Residential
Accounts
Active
Residential
Accounts
Total
(All Accounts)
TOTAL UTILITY ACCOUNTS 2,226 14,938 17,164
Number of Utility Accounts with Outstanding Balances
of 85 days and over
(% of Total Accounts)
19 (0.9%)
248

(1.6%)
265

(1.5%)
Total Amount Outstanding Balances of 85 days+ Due $ 170,147 $ 151,918 $ 322,065 Percentage (%) Residential vs. Non-Residential of
Outstanding Balances of 85 days and over
53% 47% 100%

Authorize Subsidy for Residential Accounts
The Utilities Subsidy Fund has a current balance of approximately $442,000 which is comprised of collected utility penalties. Appropriating $80,000 from this Utility Subsidy Fund would allow Staff to administer a utility subsidy program. The eligibility and parameters of the program will be as follows:

1. Residential accounts outstanding with balances over 85 days as of June 10, 2022

2. Subsidize 50% of the residential outstanding balances of 85 days and over (as of June 10, 2022)

3. Require that the customer addresses all other outstanding balances via payoff or payment plan

4. Continue reminder notice, final notice and penalties for payment plan

5. Require any payment plan to be kept current with 5-day grace period

6. Require payment of future utility bills

7. Failure to #5 and #6 prompts immediate shutoff procedures (reminder notice, final notice, phone call, tag and ultimately utility shutoff)

This policy and subsidy program is a one-time, short-term program that will enable residents to transition during this COVID recovery. Once the $80,000 appropriation is exhausted, the utility billing subsidy will end; however, qualified residents can continue to take advantage of on-going programs such as Milpitas Assistance Program (“MAP”) for utility assistance.

The proposed $80,000 appropriation will retain Utility Subsidy Fund balance to provide for the on-going Milpitas Assistance Program. While this is a customer-oriented program, there may be residents that do not take advantage of this subsidy program, and as such, Staff will follow the shutoff procedures which includes significant outreach, payment plan options and ultimately utility shutoff as necessitated.

Non-Residential Accounts
The City has provided assistance to small business via multiple programs including Community Development Block Grants (“CBDG”) and America Rescue Plan Act (“ARPA”) grants, applying the State water and 384
Item # C19.

wastewater grants for the respective outstanding utility balances, and providing over two (2) years of utility shutoff moratorium (suspending penalties, late fees and shutoff). Given the high outstanding balances and limited Utility Subsidy Fund balance, Staff will follow the utility shutoff procedures which includes significant outreach as described above including payment plan options and ultimately shutoff as necessitated.

Policy Alternative:

Alternative: Implement the City Municipal code Section VIII-1-6.10 “Discontinuance of Residential and Non-Residential Service” and restore the shut off process.

Pros: Collection of fee revenues and implement City municipal code.

Cons: Milpitas residents and small businesses may not have enough time to pay off the outstanding utility bill before potential shut off.

Reason not recommended: The City may consider quality of life to our residents and businesses; and provide program support and flexibility where possible during this pandemic.

Fiscal Impact:

The acceptance of both grants from the California State Water Board totaling $248,048 would assist customers and reduce the potential of utility revenue loss. The one-time residential account utility subsidy appropriation is $80,000.

California Environmental Quality Act:

The action being considered has no potential for causing a significant effect on the environment and is exempt from the California Environmental Quality Act (CEQA) Guidelines Section 15061 (b)(3). The action is also exempt under CEQA Guideline 15378(b)(4) as a governmental fiscal activity not involving a commitment to any specific project.

Recommendation:

1. Accept Water and Wastewater Arrearage Grants from the Water State Board;

2. Authorize a subsidy for residential accounts with an outstanding balance of 85 days and over; and

3. Approve a budget appropriation of $248,048 for grants and $80,000 for residential utility account subsidy

Attachments:

1. Budget Change Form

Check if City Council Approval required. Meeting Date: June 21, 2022

Requested by: Department Head: Lauren Lai Date: June 21, 2022 Reviewed by: Finance Director: Lauren Lai Date: June 21, 2022

Date approved by City Council, if required: Confirmed by:

FI/24786/V Form 30-222 (Rev. 1/92)
385
Item # C19.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Consider Recommendations from Mayor Tran for Appointments to City Commissions (Contact: Mayor Tran, 408- 586-3029)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 6/21/2022
Recommendation: Receive Mayor Tran’s recommendation and approve the appointment to Economic Development and Trade Commission.

Background:

The City of Milpitas has 13 Commissions (including Measure F Oversight Committee), with the members appointed by the Mayor and confirmed by the City Council, that advise the Milpitas elected officials on a variety of community interest and policy areas. Mayor Tran is making the following recommendation for a Commissioner appointment.

Economic Development and Trade Commission

1. Appoint Cheri Romero to serve as Commissioner for the Real Estate seat with a short-term to expire April 2024.

Analysis:

Any resident interested in serving on a City Commission must complete a Commission Application and submit the form to the City Clerk. Copies of the applications are provided to the Mayor for his consideration. Per Government Code 40605, in a general law city where the office of Mayor is an elective office, the Mayor with the approval of the City Council, shall make all appointments to boards, commissions, and committees unless otherwise specifically provided by statute.

Fiscal Impact:

There is no fiscal impact associated with this item.

Recommendation:

Receive Mayor Tran’s recommendation and approve the appointment to the Economic Development and Trade Commission.

Attachments:

1. Application
386
Item # C20.

COMMISSION/COMMITTEE APPLYING FOR:

Economic Development and Trade Commission
Name
Cheri Elizabeth Romero
Address Type
Residence
Address
City
Milpitas
Postal/Zip Code
95035
Mobile Number
E-Mail Address

Present Employer
Self Employed-Keller Williams Silicon City
Business Address (Optional)
2221 Oakland Rd. #268
City
San Jose
Postal / Zip code
95131

Occupation
Realtor®
Education: If Youth Advisory Commission
applicant, indicate your grade/school:

Bachelor of Arts Degree Business of Administration
College, Professional, Vocational, or
other schools attended
Studied In Spain, Real Estate School, additional education opportunites List community organizations to which you belong or have belonged (additional information may be attached).

Name of Organization
Milpitas Knights
Member
Parent Participant
Name of Organization
PTA
Member
membership
Name of Organization
NHORA
Member
BOD
If application is for Veterans Commission, indicate branch and service in any U.S. military organization (retired or active duty).

Briefly describe the personal qualifications you possess which you believe would be an asset (additional information may be attached):

My family and I have been an integral part of the community for more that four decades. We have participated in many community events.
*9-11 *firestation events *mayoral events *relay for life *casa azteca community events *day of the dead community fundraising events 2021 and 2022*William burnett events**mhs events** Too many events to mention.
** Yo hablo español.*** I speak fluent Spanish.***
I currently work as a realtor®. I believe that my expertise in the real estate industry and the connections I have with 387
Item # C20.
the community can be a bridge to making meaningful and fruitful advances for and within the City of Milpitas which I love!
Upload a File
Date
Jun 15, 2022
I have sufficient time to devote to this
responsibility and will attend the
required meetings if I am appointed to fill
a future vacancy. I hereby certify that all
statements contained in this application
are true.

Appointments to Commissions or Committees are made by the Mayor with the concurrence of the City Council.

Applications not acted upon will expire after one year from the date submitted unless renewed by the applicant. Once submitted, your application will be submitted to the City Clerk.

NOTE: ALL COMMISSION APPLICATIONS ARE PUBLIC RECORD
388
Item # C20.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Approve the City Council Policy for Naming Streets, Parks and Facilities (Staff Contact: Renee Lorentzen, Director of Recreation and Community Services, 408- 586-3409)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 6/21/2022
Recommendation: Approve the City Council Policy for Naming Streets, Parks and Facilities.

BACKGROUND:

On February 26, 2019, City Council sunset the Streets, Parks and Facilities Naming Subcommittee and directed staff to assign naming recommendations for streets to the Planning Commission and for parks and facilities to the Parks, Recreation and Cultural Resources Commission. Based on the City Council direction and the input from the previous Naming Subcommittee, staff developed an updated policy in the new City Council Policy format for naming streets, parks and facilities.

On May 3, 2022, staff brought a draft revision of the updated City Streets, Parks and Facilities Naming Policy to City Council for discussion and further direction. Through this discussion, City Council asked that the following changes be incorporated into the final policy:
- No elected official be eligible for having their name added to a list or have a street, park or facility named after them, and
- A City Council subcommittee be formed to review and make naming recommendations to the City Council.

Additionally, it was also requested that efforts to garner new names for the Naming Lists be conducted with the community.

ANALYSIS:

Based on general Council consensus and staff presentation during the May 3 City Council meeting, staff updated sections of the final policy as follows.

Policy Sections
Section 2.2 in the Policy section reads: “The City Council Ad Hoc Naming Subcommittee shall evaluate names of City streets, parks and facilities, and shall make recommendations to the City Council.”

Section 2.7.9 in the Policy section reads: “No seated elected official shall have their name added to a naming list or have a street, park or facility named after them while serving on the City Council.”

Section 3.2.1 in the Procedure section reads: “City street, park and facilities naming recommendations shall be brought to the City Council Ad Hoc Naming Subcommittee for recommendation to the City Council and may be considered at any regular or special City Council meeting.”

Next Steps
After approval of the City Council Policy for Naming Streets, Parks and Facilities, staff will return in August with an agenda item to establish the City Council Ad Hoc Naming Subcommittee. Once the Committee is established, staff will seek input regarding community outreach to update names to the Naming Lists. Per the Policy, any changes to the Naming Lists require Council approval.

389
Item # C21.

FISCAL IMPACT:

There is no fiscal impact with the approval of this policy.

RECOMMENDATION:

Approve the City Council Policy for Naming Streets, Parks and Facilities.

Attachment(s):

Draft Streets, Parks and Facilities Naming Policy

390
Item # C21.

CITY OF MILPITAS
Revision Date
Original 04/21/2006
6/21/2022

CITY COUNCIL POLICY

1. PURPOSE

1.1. This Policy establishes the guidelines, criteria, and processes for naming City streets, parks, and other facilities.

1.2. This Policy is consistent with Milpitas Municipal Code, Title XI-1000 and Government Code Section 34093.

2. POLICY

2.1. The City shall have the sole authority and the City Council shall have the final authority to approve names of City Streets, Parks, and other Facilities.

2.2. The City Council Ad Hoc Naming Subcommittee shall evaluate names of City streets, parks and facilities, and shall make recommendations to the City Council.

2.3. Although the City will have full control and final decision-making authority on any names selected, public input will be received, and other names may be raised and requested to be considered by the City Council.

2.4. From time to time, the City Council shall approve names to be added to a list(s) of names suitable for streets, parks, and facilities.

2.5. No duplication of names within an asset type (i.e., park, facility, plaza) will be approved.

2.6. A deliberative process by City staff will be conducted to ensure that renaming of a street, park, and facility will not diminish the original justification for the name of the prior contributors. Parks and facilities named after individuals shall not be changed unless it is found that because of the individual’s character the continued use of their name would not be in the best interest of the community. Parks that have been named by deed restriction shall not be considered for renaming.

2.7. The following criteria and factors shall be considered with naming or renaming a street, park, or facility:

2.7.1. Neighborhood or geographical identification, such as street, school, or other descriptive names;

2.7.2. Natural or geological features of the area;

2.7.3. Historical or cultural significance: the name of a historical figure can be considered, if the figure had a significant and extraordinary historical influence on the area, state, national, or international level;
Policy No:

Click or tap here to enter
text.

CITY STREETS, PARKS AND

FACILITIES NAMING POLICY
Effective Date:
6/21/2022
Revision No:
1 Policy Administrator:

Recreation and Community Services

Next Review Due:

As needed
Related Policies and
Procedures:

Incorporates and
replaces SOP 1.3
Approved by:

Click or tap here to enter text.

Council meeting date, agenda item #, and
vote

Date Approved:
6/21/2022
391
Item # C21.

CITY OF MILPITAS
Revision Date
Original 04/21/2006

CITY STREETS, PARKS, AND FACILITIES NAMING POLICY / POLICY #

2.7.4. The name of any person or family that has made a significant impact in the community and/or in development of the street, park, or facility;

2.7.5. An individual or organization that contributed significantly to the acquisition or development of the park or facility to be named. This can include either a deed or substantial monetary contribution, or contribution toward the acquisition, and/or development of the park of facility. (Naming rights are not guaranteed if the donation is a dedication as required by the subdivision.)

2.7.6. The articulated preference of residents of the neighborhood surrounding the street, park, facility;

2.7.7. A name should represent community values and consider future generations and ethnic diversity;

2.7.8. If the name of an individual or family is to be considered, the use of such name shall have the approval of the individual (or his/her surviving family) or family when reasonably possible;

2.7.9. No seated elected official shall have their name added to a naming list or have a street, park or facility named after them while serving on the City Council.

2.7.10. Avoid confusing or similar sounding names (Public Safety Dispatch test);

2.7.11. Avoid changing street names along any continuous alignment (Continuity test).

2.8. Naming of parks and facilities near schools shall be coordinated with the Milpitas Unified School District as much as possible.

2.9. All naming and/or renaming of a park or facility will be set forth by a Council Resolution.

2.10. Should policy conflict with any City Ordinance, Code or other laws and regulations, the respective City Ordinance, Code or other laws and regulations shall prevail.

3. PROCEDURE

3.1. Maintaining a List of Names for Naming Streets, Parks, and Facilities.

3.1.1. The Recreation and Community Services Department shall maintain a List of Names for Naming Streets, Parks, and Facilities.

3.1.2. As needed, the Director of Recreation and Community Services shall bring additions to the List of Names for Naming Streets, Parks, and Facilities to Council for approval at any regular or special City Council meeting.

3.2. Naming of Streets, Parks, and Facilities

3.2.1. City street, park and facilities naming recommendations shall be brought to the City Council Ad Hoc Naming Subcommittee for recommendation to the City Council and may be considered at any regular or special City Council meeting.”.

3.2.2. Naming recommendations shall be from the City Council approved List of Names available from the Director of Recreation and Community Services.

3.3. Proposed names for new City streets, parks, and facilities should be considered during the entitlement process prior to the final map approval.

3.4. Names being considered for streets shall be reviewed by the City and County emergency services dispatch and Post Office to discourage names that are too similar or confusing that may hinder emergency response; or are otherwise inappropriate for public safety purposes. 392
Item # C21.

CITY OF MILPITAS
Revision Date
Original 04/21/2006

CITY STREETS, PARKS, AND FACILITIES NAMING POLICY / POLICY #

3.5. The following City Departments will contribute to the establishment and maintenance of databases for named streets, parks, and facilities:

3.5.1. Information and Technology Department – Maintain database of all City assets (streets, parks, and facilities)

3.5.2. Recreation and Community Services Department – Maintain Naming Lists, information about historical references, person’s full names, ancestry, dates of birth and death, and other information of interest about the person or group, and the significance of their name to Milpitas’ history and/or to that particular named asset.

3.5.3. Planning Department – Coordinate Street Naming related to new development, prepare, and maintain GIS databases for mapping of new facilities.

3.6. Renaming of a street, park, or facility

3.6.1. The renaming of a street, park, or facility may be initiated by City Council, City Commission, City staff, a group, or individuals.

3.6.2. The initiation of renaming by non-City organizations or individuals shall be made by participating during Public Forum at the appropriate advisory City Commission or City Council meeting.

3.6.3. The City Commission may place the request on the agenda for review of the proposed name(s), taking of public comment, and discussion of the renaming proposal consistent with this Policy.

3.6.4. When a City Commission considers the renaming proposal of a street, park, or facility, staff shall notify the surrounding neighborhood in a ¼ mile radius.

3.6.5. If the City Commission supports the renaming proposal, it will make a recommendation to the City Council for Council consideration.

3.7. The name of a park or facility that is sold, transferred to non-city ownership, or otherwise deemed to no longer be a City of Milpitas property, should be transferred to another location eligible for naming. Should there not be an appropriate location, the name shall be added to the appropriate Naming List for future use.

393
Item # C21.

CITY OF MILPITAS
Revision Date
Original 04/21/2006
6/21/2022

CITY COUNCIL POLICY

1. PURPOSE

1.1. This Policy establishes the guidelines, criteria, and processes for naming City streets, parks, and other facilities.

1.2. This Policy is consistent with Milpitas Municipal Code, Title XI-1000 and Government Code Section 34093.

2. POLICY

2.1. The City shall have the sole authority and the City Council shall have the final authority to approve names of City Streets, Parks, and other Facilities.

2.2. The City Council Ad Hoc Naming Subcommittee shall evaluate names of City streets, parks and facilities, and shall make recommendations to the City Council.The City Council Naming AdHOC committee shall evaluate names of City streets, and shall make recommendations to the City Council.

2.3.2.2. The Parks, Recreation, and Cultural Resources Commission shall evaluate names of City parks and facilities, and shall make recommendations to the City Council.

2.4.2.3. Although the City will have full control and final decision-making authority on any names selected, public input will be received, and other names may be raised and requested to be considered by the City Council.

2.5.2. 4. From time to time, the City Council shall approve names to be added to a list(s) of names suitable for streets, parks, and facilities.

2.6.2. 5. No duplication of names within an asset type (i.e., park, facility, plaza) will be approved.

2.7.2.6. A deliberative process by City staff will be conducted to ensure that renaming of a street, park, and facility will not diminish the original justification for the name of the prior contributors.

Parks and facilities named after individuals shall not be changed unless it is found that because of the individual’s character the continued use of their name would not be in the best interest of the community. Parks that have been named by deed restriction shall not be considered for renaming.

2.8.2. 7. The following criteria and factors shall be considered with naming or renaming a street, park, or facility:

2.8.1.2. 7.1. Neighborhood or geographical identification, such as street, school, or other descriptive names;

2.8.2.2. 7.2. Natural or geological features of the area; Policy No:

Click or tap here to enter
text.

CITY STREETS, PARKS AND

FACILITIES NAMING POLICY
Effective Date:
6/21/2022
Revision No:
1 Policy Administrator:

Recreation and Community Services
Next Review Due:

As needed
Related Policies and
Procedures:

Incorporates and
replaces SOP 1.3
Approved by:

Click or tap here to enter text.

Council meeting date, agenda item #, and
vote

Date Approved:
6/21/2022
394
Item # C21.

CITY OF MILPITAS
Revision Date
Original 04/21/2006

CITY STREETS, PARKS, AND FACILITIES NAMING POLICY / POLICY #

2.8.3.2.7.3. Historical or cultural significance: the name of a historical figure can be considered, if the figure had a significant and extraordinary historical influence on the area, state, national, or international level;

2.8.4.2. 7.4. The name of any person or family that has made a significant impact in the community and/or in development of the street, park, or facility;

2.8.5.2. 7.5. An individual or organization that contributed significantly to the acquisition or development of the park or facility to be named. This can include either a deed or substantial monetary contribution, or contribution toward the acquisition, and/or development of the park of facility. (Naming rights are not guaranteed if the donation is a dedication as required by the subdivision.)

2.8.6.2. 7.6. The articulated preference of residents of the neighborhood surrounding the street, park, facility;

2.8.7.2. 7.7. A name should represent community values and consider future generations and ethnic diversity;

2.7.8. I f the name of an individual or family is to be considered, the use of such name shall have the approval of the individual (or his/her surviving family) or family when reasonably possible;

2.8.8.2. 7.9. No seated elected official shall have their name added to a naming list or have a street, park or facility named after them while serving on the City Council.

2.8.9.2.7.10. Avoid confusing or similar sounding names (Public Safety Dispatch test);

2.8.10.2.7.11. Avoid changing street names along any continuous alignment (Continuity test).

2.9.2.8. Naming of parks and facilities near schools shall be coordinated with the Milpitas Unified School District as much as possible.

2.10.2. 9. All naming and/or renaming of a park or facility will be set forth by a Council Resolution.

2.11.2.10. Should policy conflict with any City Ordinance, Code or other laws and regulations, the respective City Ordinance, Code or other laws and regulations shall prevail.

3. P ROCEDURE

3.1. Maintaining a List of Names for Naming Streets, Parks, and Facilities.

3.1.1. The Recreation and Community Services Department shall maintain a List of Names for Naming Streets, Parks, and Facilities.

3.1.2. As needed, the Director of Recreation and Community Services shall bring additions to the List of Names for Naming Streets, Parks, and Facilities to Council for approval at any regular or special City Council meeting.

3.2. Naming of Streets, Parks, and Facilities

3.2.1. City street, park and facilities naming recommendations shall be brought to the City Council Ad Hoc Naming Subcommittee for recommendation to the City Council and may be considered at any regular or special City Council meeting.”City street naming recommendations shall be brought to the Planning Commission for recommendation to the City Council and may be considered at any regular or special meeting. 395
Item # C21.

CITY OF MILPITAS
Revision Date
Original 04/21/2006

CITY STREETS, PARKS, AND FACILITIES NAMING POLICY / POLICY #

3.2.2. City park and facility naming recommendations shall be brought to the Parks, Recreation, and Cultural Resources Commission for recommendation to the City Council and may be considered at any regular or special meeting.

3.2.3.3.2.2. Naming recommendations shall be from the City Council approved List of Names available from the Director of Recreation and Community Services.

3.3. Proposed names for new City streets, parks, and facilities should be considered during the entitlement process prior to the final map approval.

3.4. Names being considered for streets shall be reviewed by the City and County emergency services dispatch and Post Office to discourage names that are too similar or confusing that may hinder emergency response; or are otherwise inappropriate for public safety purposes.

3.5. The following City Departments will contribute to the establishment and maintenance of databases for named streets, parks, and facilities:

3.5.1. Information and Technology Department – Maintain database of all City assets (streets, parks, and facilities)

3.5.2. Recreation and Community Services Department – Maintain Naming Lists, information about historical references, person’s full names, ancestry, dates of birth and death, and other information of interest about the person or group, and the significance of their name to Milpitas’ history and/or to that particular named asset.

3.5.3. Planning Department – Coordinate Street Naming related to new development, prepare, and maintain GIS databases for mapping of new facilities.

3.6. Renaming of a street, park, or facility

3.6.1. The renaming of a street, park, or facility may be initiated by City Council, City Commission, City staff, a group, or individuals.

3.6.2. The initiation of renaming by non-City organizations or individuals shall be made by participating during Public Forum at the appropriate advisory City Commission or City Council meeting.

3.6.3. The City Commission may place the request on the agenda for review of the proposed name(s), taking of public comment, and discussion of the renaming proposal consistent with this Policy.

3.6.4. When a City Commission considers the renaming proposal of a street, park, or facility, staff shall notify the surrounding neighborhood in a ¼ mile radius.

3.6.5. If the City Commission supports the renaming proposal, it will make a recommendation to the City Council for Council consideration.

3.7. The name of a park or facility that is sold, transferred to non-city ownership, or otherwise deemed to no longer be a City of Milpitas property, should be transferred to another location eligible for naming. Should there not be an appropriate location, the name shall be added to the appropriate Naming List for future use.

396
Item # C21.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Reconfirm Findings and Determinations Under Resolution No. 9165 and Assembly Bill 361 for the Continuation of Virtual Meetings of the City Council and Legislative Bodies (Staff Contact: Michael Mutalipassi, City Attorney, 408-586-3040) Category: Consent Calendar-Leadership and Support Services Meeting Date: 6/21/2022
Recommendation: Move to reconfirm findings and determinations under Resolution No. 9165 and Assembly Bill 361 for the continuation of virtual meetings of the City Council and Legislative Bodies.

Background:

On March 17, 2020, in the face of the COVID -19 pandemic, Governor Gavin Newsom issued Executive Order N-29-20 suspending certain provisions of the Ralph M. Brown Act in order to allow for local legislative bodies to conduct their meetings completely telephonically or by other electronic means.

The provisions in the Brown Act that were suspended by the Gove rnor’s Executive Order are contained at Government Code Section 54953(b)(3) and require that when teleconferencing is used, outside of a statewide emergency, that the following occur:
 An agenda is required to be posted at all locations, including any teleconference locations  Each teleconference location must be identified on the actual agenda  Each teleconference location shall be accessible to the public  A quorum of the legislative body must be in the jurisdiction With the Governor’s Executive Order, the four above requirements were suspended, allowing Councilmembers to not have to post an agenda at their teleconference location, not have to identify their location on the meeting agenda, not have to ensure public accessibility at the teleconference location, and the legislative body did not need a quorum present in the jurisdiction. As the Council is well aware, this allowed all City Council meetings and other meetings of legislative bodies of the City to be conducted by Zoom with councilmembers, commission members, committee members, and staff all joining from remote virtual locations.

The suspension of certain provisions of the Brown Act was further extended by the Governor on June 11, 2021 by the issuance of Executive Order N -08-21 which continued to allow for complete virtual meetings until September 30, 2021.

With the expiration of the Governor’s Executive Order and the uncertainty that surrounded the Governor’s potential recall, the State Legislature also took the remote meeting issue into its own hands through the adoption of Assembly Bill 361, which is explained in more depth in the Analysis section below.

On May 17. 2022, the City Council adopted Resolution No. 9156, making findings that there is an existing State of Emergency and that state or local officials continue to recommend social distancing measures to prevent the spread of COVID -19. In particular, the r esolution included reference to Cal -OSHA regulation 3205, which 397
Item # C22.

recommends physical distancing in the workplace. By motion and majority vote, the City Council may reconfirm the findings of Resolution No. 9156 and continue to hold virtual meetings pursuant to AB 361.

Analysis:

On September 16, 2021, the Governor signed AB 361, which allows legislative bodies to meet virtually provided there is a state of emergency declared by the Governor, and either (1) state or local officials have imposed or recommended measures to promote social distancing; or (2) the legislative body determines by majority vote that meeting in person would present imminent risks to the health and safety of attendees. The Governor by executive order signed on September 20, 2021, suspended the effective date of AB 361 to October 1, 2021. As a result, if the City desires to have virtual meetings on or after October 1, 2021, it must do so consistent with the requirements of AB 361.

AB 361 preserves many of the provisions of the earlier executive orders , including the suspension of the four teleconferencing requirements noted above, while also adding new requirements to the management of remote and teleconference public meetings in order to better achieve the levels of transparency that the Brown Act demands. Specifically, AB 361 imposes two new rules on remote public meetings:

1. Local governments and agencies hosting teleconference meetings in lieu of traditional in -person public meetings must permit direct public comment during the teleconference and must leave open the opportunity for public comment until the comment period for a given item is closed during the ordinary course of the meeting. The opportunity to make public comment must b e of a sufficient duration so as to allow actual public participation.

2. Any action by the governing body during a public teleconference meeting must occur while the agency is actively and successfully broadcasting to members of the public through a call -in option or an internet-based service option. If a technical disruption within the agency’s control prevents members of the public from either viewing the meeting of the public agency or prevents members of the public from offering public comment, the agency must cease all action on the meeting agenda until the disruption ends and the broadcast is restored. Action taken during an agency-caused disruption may be challenged as a violation of the Brown Act.

In order to continue to qualify for AB 361’s waiver of in -person meeting requirements, the City Council must, within thirty (30) days of its first meeting under AB 361, and every thirty (30) days thereafter, make findings that (a) state or local officials continue to recommend measures to promote social distancing, or that (b) an in-person meeting would constitute an imminent risk to the safety of attendees.

The above conditions continue to exist at this time, and staff recommends that the City Council by motion reconfirm the findings made in Resolution No. 9156 so that the City Council and all other subordinate legislative bodies may continue to meet virtually.

Lastly, it is important to note that AB 361 is optional. If the City Council wishes, it may meet in person. In addition, hybrid meetings are permissible.

Policy Alternatives:

Alternative 1: Do not by motion reconfirm the findings made in the resolution making findings and determinations under Assembly Bill 361 for the continuation of virtual meetings.

Pros: None
Cons: Many of the existing Commission, Committee, and Task Force meetings will not be able to meet virtually or through a hybrid format forcing all staff, commission or committee members, and the public to attend meetings in person.

Reason not recommended: The COVID-19 pandemic continues to be a global health issue and by forcing commission, committee, and task force meetings to be in person, public health may be put at risk.

Fiscal Impact:
398
Item # C22.

The City Council’s reconfirmation of the findings made in the resolution to continue with virtual meetings will maintain the status quo and no financial impact is anticipated by the reconfirmation of the findings.

California Environmental Quality Act:

The City Council’s reconfirmation of the find ings made in the resolution is not a project under the California Environmental Quality Act (CEQA) Guideline 15378 (b)(5) as it constitutes an organizational or administrative activity of the government that will not result in direct or indirect physical changes in the environment. Further, virtual meetings are likely to reduce certain impacts associated with vehicular travel related to in-person public meetings.

Recommendation:

Move to reconfirm findings and determinations under Resolution No. 9105 and Assembly Bill 361 for the continuation of virtual meetings of the City Council and Legislative Bodies.

Attachment

1. Resolution 9165
399
Item # C22.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Authorize the City Manager to Reject All Proposals for RFP No. 22-058 for Abandoned Shopping Cart Retrieval Services (Staff Contact: Sharon Goei, Building Safety and Housing Director, 408-586-3260; and Chris Schroeder, Purchasing Agent, 408-586-3161)
Category: Consent Calendar-Community Development
Meeting Date: 6/21/2022
Recommendation: Authorize the City Manager to Reject All Proposals for RFP No. 22-058 for Abandoned Shopping Cart Retrieval Services.

Background:

The current shopping cart services vendor for the City of Milpitas has been providing the City with shopping cart collection services since March of 2002. During this time, the City of Milpitas has conducted five Requests for Proposals (RFPs) for shopping cart services, most recently in 2012 and 2017.

These services provide the retrieval of shopping carts left abandoned throughout the City. Carts that belong to participating stores are counted and returned to the participating stores. The City then invoices the stores for collecting and returning the abandoned shopping carts. Carts that belong to non-participating stores are impounded and stored at a storage yard, and if not collected by the non-participating stores, the carts are recycled or disposed of. The shopping cart vendor works with City Departments and uses information in the MyMilpitas App on the SeeClickFix platform to locate and collect abandoned shopping carts.

The contract with the current provider Alice Wright expires on June 30, 2022. The Building Safety and Housing Department began the RFP process with Finance on January 3, 2022.

Analysis:

Shopping cart services retrieve abandoned shopping carts and return them to the appropriate businesses to eliminate visual blight from the City’s streets and neighborhoods, as well as to help Milpitas businesses reduce the cost of replacing shopping carts. During the last twenty years, the number of carts being collected has increased from approximately 450 shopping carts per month to nearly 750 shopping carts per month for an estimated annual total of 9,000 shopping carts per year.

The Purchasing Division of the Finance Department (Purchasing) and the Code Enforcement team in the Building Safety and Housing Department jointly developed the specifications for a Request for Proposal for abandoned shopping cart retrieval services.

On February 25, 2022, Purchasing issued RFP No. 22-058 for Abandoned Shopping Cart Retrieval Services. A total of 307 companies viewed the RFP, 15 downloaded the RFP, and 3 companies submitted a response. On March 31, 2022, three proposals in response to the RFP were received. One proposal was disqualified for being non-compliant with submittal requirements. The proposals were evaluated by a 5-member panel composed of representatives from the Department of Public Works, Human Resources, Recreation and Community Services, and Building Safety and Housing, as well as Redwood City Building Inspection and Code Enforcement Services. The evaluation criteria included the cover letter, company profile, execution plan, personnel assigned, proposed compensation, and references. The results are detailed below.

400
Item # C23.

Company Name Score 5-Year Contract Dollar Amount
All American Shopping Carts Disqualified --
Alice Wright 56.4 $174,600.00
CityWide Cart Savers, LLC. 89.8 $112,500.00

CityWide Cart Savers, LLC. is the proposer offering the most advantageous proposal for this service after consideration of all evaluation criteria.

At the City Council meeting on June 7, 2022, CityWide Cart Savers, LLC. withdrew their proposal and the item was continued to a future Council meeting.

The other responsive proposal from Alice Wright is $62,100, or 55% higher, than CityWide Cart Savers’ proposal. It is thus in the City’s best interest to conduct a new RFP to seek more competitive pricing. In addition, through further discussions on the scope of services, staff recognized the need to refine the scope with respect to the handling of individual belongings in carts and their associated storage and management at the City’s corporation yard.

Per Section 30 of the RFP, REJECTION OF PROPOSALS AND WAIVER OF INFORMALITIES, “The City reserves the right to cancel the RFP and make no award.”

Staff recommends that City Council authorize the City Manager to Reject All Proposals for RFP No. 22-058 for Abandoned Shopping Cart Retrieval Services.

Policy Alternative:

Alternative: Award RFP No. 22-058 to Alice Wright.

Pros: None.

Cons: Alice Wright’s proposal is significantly higher in cost than the lowest proposal. Also, the City needs to refine the scope of services as noted earlier.

Reason not recommended: As described above, it is in the best interest of the City to conduct a new RFP so that the scope of services may be refined, and a competitive bid process may take place.

Fiscal Impact:

None.

California Environmental Quality Act:

In accordance with CEQA Guidelines Section 15378(b)(2), action on this item is not a project subject to CEQA because it will not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and involves continuing administrative or maintenance activities.

Recommendation:

Authorize the City Manager to Reject All Proposals for RFP No. 22-058 for Abandoned Shopping Cart Retrieval Services.

Attachment:

None.
401
Item # C23.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Approve and Authorize the City Manager to Execute Amendment No. 4 to the Shopping Cart Retrieval Services Contract with Alice Wright (Staff Contact: Sharon Goei, Building Safety and Housing Director, 408-586-3260; and Chris Schroeder, Purchasing Agent, 408-586-3161)
Category: Consent Calendar-Community Development
Meeting Date: 6/21/2022
Recommendation: Approve and authorize the City Manager to execute Amendment No. 4 to the Shopping Cart Retrieval Services Contract with Alice Wright, adding a one-year extension to the five-year contract, for a total of six years and increasing the total not-to- exceed amount by $34,920.00 from $111,384.62 to $146,304.62.

Background:

The current shopping cart services vendor for the City of Milpitas has been providing the City with shopping cart collection services since March of 2002. During this time, the City of Milpitas has conducted five Requests for Proposals (RFPs) for shopping cart services, most recently in 2012 and 2017.

These services provide the retrieval of shopping carts left abandoned throughout the City. Carts that belong to participating stores are counted and returned to the participating stores. The City then invoices the stores for collecting and returning the abandoned shopping carts. Carts that belong to non-participating stores are impounded and stored at a storage yard, and if not collected by the non-participating stores, the carts are recycled or disposed of. The shopping cart vendor works with City Departments and uses information in the MyMilpitas App on the SeeClickFix platform to locate and collect abandoned shopping carts.

The contract with the current provider Alice Wright expires on June 30, 2022. The Building Safety and Housing Department began the RFP process with Finance on January 3, 2022.

Analysis:

Shopping cart services retrieve abandoned shopping carts and return them to the appropriate businesses to eliminate visual blight from the City’s streets and neighborhoods, as well as to help Milpitas businesses reduce the cost of replacing shopping carts. During the last twenty years, the number of carts being collected has increased from approximately 450 shopping carts per month to nearly 750 shopping carts per month for an estimated annual total of 9,000 shopping carts per year.

The Purchasing Division of the Finance Department (Purchasing) and the Code Enforcement team in the Building Safety and Housing Department jointly developed the specifications for a Request for Proposal for abandoned shopping cart retrieval services.

On February 25, 2022, Purchasing issued RFP No. 22-058 for Abandoned Shopping Cart Retrieval Services.

The City received three proposals, one of which was disqualified. The two proposals from Alice Wright and CityWide Cart Savers, LLC. were evaluated by a panel based on several criteria. Based on the criteria, the panel rated the proposal from CityWide Cart Savers, LLC. as the most advantageous. It was also significantly lower in cost than the proposal from Alice Wright.

402
Item # C24.

At the City Council meeting on June 7, 2022, CityWide Cart Savers, LLC. withdrew their proposal and the item was continued to a future Council meeting.

The other responsive proposal from Alice Wright is $62,100, or 55% higher, than CityWide Cart Savers’ proposal. It is thus in the City’s best interest to conduct a new RFP to seek more competitive pricing. In addition, through further discussions on the scope of services, staff recognized the need to refine the scope with respect to the handling of individual belongings in carts and their associated storage and management at the City’s corporation yard.

Per Section 30 of the RFP, REJECTION OF PROPOSALS AND WAIVER OF INFORMALITIES, “The City reserves the right to cancel the RFP and make no award.”

In a separate agenda report, for the reasons described above, staff noted that it is in the City’s best interest to conduct a new RFP so that the scope of services may be refined, and a competitive bid process may take place. In that agenda report, staff recommends that City Council authorize the City Manager to Reject All Proposals for RFP No. 22-058 for Abandoned Shopping Cart Retrieval Services.

Due to the necessity of continuing the shopping cart retrieval services, a one-year extension of the current contract was proposed to Alice Wright, who accepted the proposal with the condition that the price per cart be increased from $3.00 per shopping cart to $3.88 per shopping cart due to rising fuel costs and high inflation.

This is an increase of $0.88 per cart, or 29% increase, over the current contract shopping cart retrieval rate.

Given the need to continue this important service beyond the expiration of the current contract on June 30, staff is recommending moving forward with the one-year extension at the higher rate per cart.

Attachment 1 contains Amendment No. 4 to the contract for Abandoned Shopping Cart Retrieval Services with Alice Wright, incorporating the amount of $34,920 ($3.88 per cart x 9,000 carts) for fiscal year 2022-2023.

Policy Alternative:

Alternative: Do not execute Amendment No. 4 with Alice Wright for shopping cart retrieval services.

Pros: None.

Cons: The City will not have shopping cart retrieval services.

Reason not recommended: A gap in the provision of shopping cart retrieval services will add further occurrences of blight in the City.

Fiscal Impact:

A funding amount of $30,000 was budgeted in FY2022-2023 and an additional $4,920 will come from the Building Safety and Housing Department operating budget.

California Environmental Quality Act:

In accordance with CEQA Guidelines Section 15378(b)(2), action on this item is not a project subject to CEQA because it will not cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and involves continuing administrative or maintenance activities.

Recommendation:

Approve and authorize the City Manager to execute Amendment No. 4 to the Shopping Cart Retrieval Services Contract with Alice Wright, adding a one-year extension to the five-year contract, for a total of six years and increasing the total not-to-exceed amount by $34,920.00 from $111,384.62 to $146,304.62.

Attachment:

1. Amendment No. 4 to the Contract for Abandoned Shopping Cart Retrieval Services with Alice Wright

403
Item # C24.

AMENDMENT NO . 4 TO THE CONTRACT

WITH ALICE WRIGHT

FOR ABANDONED SHOPPING CART RETRIEVAL SERVICE S

This Amendment is entered into as of _______________ by and between the City of Milpitas, a municipal corporation of the State of California (hereafter referred to as "City") and Alice Wright , a sole proprietor (hereafter referred to as "CONTRACTOR"). City and Contractor are sometimes individually referred to as "Party" and collect ively as "Parties" in this Amendment .

RECITALS
WHEREAS , on M ay 11, 2017, the Parties entered into a Contract for Abandoned shopping Cart Retrieval Services (“Contract”); with a term period of July 1, 2017, to June 30, 2018, and with four (4) one -year options for the City to extend the Contract, and a compensation amount for the first year not -to -exceed $72,000.00; and WHEREAS , on June 28, 2018, the Parties entered into Amendment No 1 to the Contract to inc rease the compensation amount by $4,639.50 for contract year two, for a contract year two total of $19 ,039.50, and by $5,100.00 for contract years one, two, three, four and five for a new, annual contract amount of $19,500.00 for contract years two, three, four and five, resulting in a new not -to -exceed total Contract amount of $97,039.50 for all five years, should all fou r Options to extend the Contract be exercised; and WHEREAS , on August 8, 2018, the Parties entered into Amendment No. 2 to the Contract to increase the compensation amount by $2,100.00 for contract years one, three, four and five, for a new annual contrac t amount of $21,600.00 for contract years one, three, four and five, and $21,139.50 for contract year two, resulting in a new not -to -exceed total Contrac t amount of $107,539.5 0; and
WHEREAS , on July 12, 2021, the Parties entered into Amendment No. 3 to the Contract . B ecause of a geographical redistribution by the Bureau of Labor Statistics which changed the Consumer Price Index (CPI) Series ID: CUURA422SAO Not Seasonally Adjusted San Francisco -Oakland -San Jose, upon which the annual CPI increase is b ased (see page 18 of the Contract, Section “PRICE ADJUSTMENTS”) to Series ID: CUURS49BSAO Not Seasonally Adjusted San Francisco -Oakland -Hayward, the Parties agreed to update the Contract Terms an d Conditions PRICE ADJUSTMENT clause to reflect the new Serie s ID NOW , THEREFOR E, in consideration of the mutual covenants and conditions herein contained, the Parties agree to amend the Contract as follows :

1. The annual amount of the contract is deleted in its entirety and replaced with the following: Contract Not -To -Exceed Amount $146,304.62.

2. Section B of the Contract is deleted in its entirety and replaced with the following:

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Item # C24.

WHEREAS, The term of this contr act shall be from July 1, 2017 to June 30, 2023.

The City reserves the right to review the Contractor’s performance at any time and cancel all or part of the Contract.

3. The “ Proposal Offer Form – Costs” is hereby amended to include the following:

Cost Per Cart (FY 2022 – 2023) $3.88

4. All other provisions of the Agreement shall remain in full force and effect.

This Amendment is executed as of the date first written above .

[SIGNATURES ON THE FOLLOWING PAGE]

405
Item # C24.

SIGNATURE PAGE
FOR AMENDMENT NO. 4 WITH ALICE WRIGHT

FOR ABANDONED SHOPPING CART RETRIEVAL SERVICES

IN WITNESS WHEREOF, the Parties have executed this Amendment No. 4 as of the date first written above.

CITY OF MILPITAS ALICE WRIGHT Approved By:

____ _
Steven G. McHarris, City Manager Signature of Authorized Representative

______ ________________________________
Date Name of Authorized Representative

Approved As To Form:

______ Title of Authorized Representative
Michael Mutalipassi, City Attorney

________________________________________
Approved: Date

__________
Lauren Lai, CPA, CPM
Finance Director/Risk manager

Approved As To Content:

__________
Sharon Goei, Building Safety & Housing Director

406
Item # C24.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Adopt a Resolution to Amend Resolution No. 1626 the City of Milpitas’ Classification Plan to Approve and Adopt the Classification Specifications and Pay Schedules for the Legal Assistant, Assistant City Attorney, Deputy City Attorney and Deputy Director of Information Technology (Staff Contact: Jeannine Seher, Human Resources Director, 408-586-3086)
Category: Consent Calendar-Leadership and Support Services

Meeting Date: 6/21/2022
Recommendation: Adopt a Resolution to Amend Resolution No. 1626 the City of Milpitas’ Classification Plan to Approve and Adopt the Classification Specifications and Pay Schedules for the Legal Assistant, Assistant City Attorney, Deputy City Attorney and Deputy Director of Information Technology

Background:

On June 22, 2021, City Council reported out of closed session, its decision to transition to an in -house City Attorney model, and on August 5, 2021 formed a Subcommittee, comprised of Mayor Tran and Vice Mayor Montano to provide further direction on the recruitment process. On September 7, 2021, Council adopted the City Attorney class specification and salary schedule, and consistent with the Subcommittee’s direction, authorized the recommended recruitment process. City Council took action on April 19, 2022 to appoint the City Attorney, who started on April 26, 2022. The City Attorney is charged with the responsibility of assessing the staffing needs to adequately staff the City Attorney’s Office.

On June 7, 2022, the City Council adopted the proposed budget, authorizing the addition of one (1) FTE Legal Assistant and one (1) FTE Assistant City Attorney for the City Attorney’s Office . In addition, the Council authorized one (1) FTE Information Technology Manager be deleted and authorized the addition of one (1) FTE Deputy Director of Information Technology.

Analysis:

Staff is requesting Council adopt a Resolution to Amend the City of Milpitas’ Classification Plan to establish the classifications of Legal Assistant, Assistant City Attorney, Deputy City Attorney and Deputy Dire ctor of Information Technology.

City Attorney’s Office
The City Attorney’s budget assumed sufficient allocations to fund one (1) FTE Legal Assistant and (1) FTE Assistant City Attorney. The proposed action creates three classifications and establishes a salary scale for each, which includes a Legal Assistant, Assistant City Attorney and Deputy City Attorney. Although the City Attorney is not advocating for an additional position, the creation of the lower -level Deputy City Attorney classification is being created to afford the City Attorney with the maximum amount of flexibility in staffing his office. Given current market conditions, the candidate pool of interested and qualified attorney’s ready to assume the role of Assistant City A ttorney may be low. Therefore, the adoption of a Deputy City Attorney class will provide the City Attorney with an alternative should market conditions prove challenging in filling the higher-level position. Creating the Deputy City Attorney classification and establishing the salary provides a greater degree of flexibility should he be unable to find a candidate with the breadth and scope of experience ready to assume the duties of the Assistant City Attorney.

The proposed salary for the classification of Assistant City Attorney has been established with an internal relationship to the City Attorney classification. The proposed salary range is approximately twenty (20) percent lower than the City Attorney with a salary range of $160,000 – $216,586. 407
Item # C25.

The proposed salary for the classification of Deputy City Attorney has been established with an internal relationship to the Assistant City Attorney. The proposed salary range is approximately twenty-two (22) percent lower than the Assistant City Attorney, with a proposed salary range of $125,000 - $173,268.

The proposed salary of the Legal Assistant has been established with an internal alignment to the classification of Administrative Assistant. Both classifications require a similar level of education and experience. The annual salary is set at $80,150-72-$97,423.38.

Information Technology Department
The proposed salary for the Deputy Director of Information Technology has been established utilizing an internal relationship with the IT Director and t he IT Manager classifications. The proposed salary is set at $ 159,000 - $203,620, which is approximately 16% below the IT Director and 22% higher than the IT Manager classification.

Policy Alternative:

Alternative: Do not amend the classification salary schedule.

Pros: None, as City Council has authorized the funding for the stated positions.

Cons: Not moving forward with the recommended actions will result in the City Attorney not being successful in establishing his office and will be inconsistent with prior Council action. In addition, not moving forward with the recommended actions will delay the filling of a critical vacancy in the Information Technology Department.

Reason for not Recommending: If the City Council does not approve the amendment of the classification salary plan, the respective department heads will be struggle with achieving their objectives.

Fiscal Impact:

The annual compensation is included in the fiscal year 2022-23 budget.

California Environmental Quality Act:

Approval of the recommendation is not a project under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3) (Common Sense Exemption) as it can be seen with certainty that a discussion about establishing a salary range will not have a significant effect on the environment. Further, the item is not a project pursuant to CEQA Guidelines Section 15378(b)(5) as it involves organizational or administrative activities of a local government entit y that will not result in direct or indirect physical changes in the environment.

Recommendation:

Adopt a Resolution to Amend Resolution No. 1626 the City of Milpitas’ Classification Plan to Approve and Adopt the Classification Specifications and Pay Schedules for the Legal Assistant, Assistant City Attorney, Deputy City Attorney and Deputy Director of Information Technology.

Attachments:

Classification Specification for Assistant City Attorney Classification Specification for Deputy City Attorney
Classification Specification for Legal Assistant
Classification Specification for Deputy Director of Information Technology Resolution Amending Resolution No. 1626, the Classification Plan 408
Item # C25.

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS AMENDING RESOLUTION NO. 1626, THE CLASSIFICATION PLAN, TO APPROVE AND ADOPT

THE CLASSIFICATIONS PAY SCHEDULES

WHEREAS, the City of Milpitas has a Classification Plan adopted as Resolution No. 1626 on December 17, 1968, which has been amended from time to time, and is in accordance with the Personnel Rules and Regulations of the City of Milpitas (Resolution No. 792 as amended); and

WHEREAS, amendments to the Classification Plan are necessary to account for changes within the organization, transfer of duties, new job responsibilities, and adjustments to salary ranges; and

WHEREAS, the FY 2022/23 Adopted Budget included funding for staffing the City Attorney’s Office and added one (1) full -time equivalent (FTE) Deputy Director of Information Technology (IT) and deleted one (1) FTE IT Manager; and,

WHEREAS, the City is required to publish publicly available approved and adopted pay schedule(s) for all positions within the Classification Plan pursuant to the California Code of Regulations, 2 CCR §570.5.

NOW THEREFORE, the City Council of the City of Milpitas hereby finds, determines , and resolves as follows:

1) The City Council has considered the full record before it, which may include but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

2) Resolution No. 1626, as amended, is hereby further amended effective July 3, 2022, as set forth below.

A. APPROVE AND ADOPT THE CLASSIFICATION SPECIFICATIONS
AND PAY SCHEDULE S “NEW JOB CLASSIFICATIONS/SALARY
TABLE EFFECTIVE JULY 3, 2022”:

1. Legal Assistant, $80,150-72-$97,423.38.

2. Deputy City Attorney, $125,000 - $173,268

3. Assistant City Attorney, $160,000 – $216,586.

4. Deputy Director of Information Technology, $159,000 - $203,620

A pay schedule, that includes but is not limited to Classification (Position), Title, Payrate; Hourly, Bi-Weekly, Monthly and Annual Wage, is attached hereto as Exhibit A (“New Job Classifications/Salary Table effective 07-03-2022”).

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Item # C25.

PASSED AND ADOPTED this day of , 2022, by the following vote: AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:

Wendy Wood, City Clerk Rich Tran, Mayor APPROVED AS TO FORM:

Michael Mutalipassi, City Attorney
410
Item # C25.

City of Milpitas
Effective:

Deputy Director of Information Technology Revised:

EEOC:

FLSA:

Unit:

Physical:

DEFINITION

Plans, organizes, and directs the work of assigned programs in the Information Technology Department. Supervises and coordinates the work of staff engaged in operations related to assigned functional areas. Provides direct administrative and analytical sup port to the Director of Information Technology and assists in the overall management of the Department. Completes special projects as assigned.

DISTINGUISHING CHARACTERISTICS

The Deputy Director of Information Technology is a single position management classification within the Department of Information Technology with broad administration responsibility. It is distinguished from the Director of Information Technology in that t he latter has overall responsibility for all operations, functions, sections, and divisions of the department. This is an unrepresented, at-will position and serves at the discretion of the Appointing Authority.

SUPERVISION RECEIVED AND EXERCISED

Receives general direction from the Director of Information Technology.

Exercises direct and indirect supervision over professional, technical, and clerical staff. The Deputy Director may be assigned the responsibility to oversee the operations of one or more of the divisions in the Department. The incumbent may be assigned to act in the absence of the department director.

EXAMPLES OF DUTIES – This class specification represents the core area of responsibilities; specific position assignments will vary depending on the needs of the department:

 Exercises management authority for assigned services and activities in the Information Technology Department such as:
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Item # C25.
o developing and/or providing input into the department’s budget; o monitoring goals and objectives of assigned units and taking corrective actions as appropriate.
o recommending allocations of division funds within guidelines;  Supervises managerial, technical, clerical, and lead staff to include prioritizing and assigning work; conducting performance evaluations; ensuring staff is trained; and making hiring, termination, and disciplinary recommendations.
 Identifies new and emerging technologies for use in City government; determines appropriate times for pilot projects and directs implantation as necessary to test concepts, sets or modifies standards and architectures, and establishes plans for future implementation.
 Develops and implements operational plans to provide application services, hardware systems, and resource requirements; implements operational plans to provide information technology infrastructure services to support the City’s/department’s business goals.  Develops and manages strategic vendor and partnership relationships; ensures service provider performance is reviewed and that contract managers are notified when necessary; negotiates contracts with vendors, and authorizes procurement.  Prepares and presents Agenda Reports for City Council;  Explains and interpret s Information Technology Department programs, policies, and activities.
 Manages, train s, and evaluate s IT staff and develops processes designed to support a continuous learning environment;
 Supports the implementation of the departments and/or Citywide goals, objectives, policies, and procedures; analyzes and recommends strategies to improve the effectiveness of operational studies; recommends modifications to the IT Department activi ties with those of other departments, divisions, and outside agencies and organizations;  Represents the IT Department in interdepartmental, outside agency, and public meetings;  Participates and attends a variety of professional group meetings, committees , and task- forces; stays abreast of new trends, innovations, and best practices in the field of information technology;
 Develops and implements strategic short term and long-range division planning;  May act as the Director of Information Technology in his/her absence; and  Performs other duties of a similar nature or level as assigned.

QUALIFICATIONS

Knowledge of:
 Principles and practices of management, supervision, leadership, motivation, team building, organization, training, and conflict resolution.  Management information systems methods and practices, distributed network design, telecommunications and their effective implementation; computer hardware and software development and installation; effective service delivery and t he evaluation of computer services.
 Project management methodologies and techniques.
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Item # C25.
 Industry standards including ITIL, NIST, and ISO.
 Current and emerging technologies, technology directions , and strategic application to business needs.
 Laws, regulations and policies applicable to information technology.  Principles and practices of business administration, including budgeting, cost analysis, fiscal management, and resource management.
 Practices and techniques of administrative and statistical analysis, sta tistical report preparation, and graphic presentation of analysis.
 Oral and written communication techniques to include presentations to groups of various sizes in a positive, inclusive, and motivational manner.  Customer service techniques for interacting with internal and external customers and vendors.
 English composition spelling, grammar, vocabulary, and punctuation for both written and oral communications.

Ability to:
 Manage, supervise, evaluate, train, and develop staff and organize and manage their work.  Conceptualize, launch and deliver multiple IT projects on time and within budget.  Establish clear goals and objectives in order to create an organization that delivers excellent customer service through ethical leadership standards, and establishes an atmosphere of respect for employees consistent with the City’s Code of Ethics and Values.  Research laws, regulations, procedures, technical reference materials , and/or best practices; analyze, evaluate and interpret the data gathered; draw logical conclusions; develop reasonable and deliverable options, make appropriate recommendations; and implement the resultant change effectively.
 Build relationships; maintain and extend networks within, across , and external to organizational boundaries.
 Determine the appropriate course of action in stressful and/or emergency situations.  Communicate information and ideas clearly and concisely, both orally and in writing.  Work with and speak to various cultural and ethnic individuals and groups in a reasonable and effective manner.
 Establish and maintain effective working relationships with those contacted in the performance of required duties.
 Represent the department in meetings with representatives from various City and non-City organizations, with local businesses, vendors, internal and external customers, and/or with the general public.
 Prepare a variety of written communications to include reports, policies and procedures.  Maintain accurate records and document actions taken.  Maintain confidentiality of information.
 Gather and analyze statistical data and prepare comprehensive statistical reports.  Work effectively as a member of the department’s management team.  Stay current with developments and changes in new technologies, platforms, and industry standards.
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Item # C25.

EDUCATION AND EXPERIENCE

Education: Graduation from an accredited college or university with a Bachelor’s degree or higher in Computer Science, Information Systems, Business Administration, Public Administration, Mathematics, or a closely related field.

Experience: A minimum of six (6) years of experience in the field of technology with three (3) of those years in a managerial assignment overseeing complex information systems and business processes; experience must demonstrate familiarity with current and future applications of information technology, and trends in the field of information technology.

LICENSE OR CERTIFICATE

Incumbents must be able to travel independently to various locations within and outside the City of Milpitas to fulfill job responsibilities. When driving on City business, possession and maintenance of a valid California Driver’s License is required.

SPECIAL REQUIREMENTS:

Essential duties require the following physical abilities and work environment.

Work is performed primarily in an office setting. Positions in this class typically require stooping, kneeling, reaching, standing, walking, fingering, gr asping, feeling (e.g. a sense of touch), and repetitive motion. Work may be performed at irregular work hours, including days, nights, weekends and holidays.

Approved by:

___________________________________________
City Manager Date

Human Resources Director Date

In compliance with the Americans with Disabilities Act, the City of Milpitas will provide reasonable accommodation to qualified individuals with disabilities and encourages both prospective and current employees to discuss potential accommodations with the Human Resources Department.

The City of Milpitas is an Equal Opportunity Employer.
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Item # C25.

City of Milpitas
Effective:

ASSISTANT CITY ATTORNEY Revised:

EEOC: Admin
FLSA: Exempt
Unit: Unrepresented

DEFINITION

Under general direction, assists in administering all phases of City legal work; performs difficult and complex professional legal work including representation of the City in litigation; conducting research and providing legal advice and opinions to the C ity Council, Commissions, City Staff and City committees; acts for the City Attorney as assigned or during their absence.

DISTINGUISHING CHARATERISTICS

This is a single position class which is distinguished from the next lower class of Deputy City Attorney by the level of difficulty and complexity of work. An incumbent in this class is expected to frequently use a high degree of independent judgment and is expected to be capable of performing the full range of duties common to the position of City Attorney. These are performed as necessary and include work in an assisting capacity or full scope in the absence of the City Attorney. The incumbent handles cases as assigned or as dictated by the general policies of the City Attorney.

SUPERVISION RECEIVED AND EXERCISED

 Receives supervision from the City Attorney
 May provide supervision to lower level professional, paraprofessional, and clerical staff.

EXAMPLES OF DUTIES - Duties may include, but are not limited to, the following:
 Represents the City and its officers and employees in litigation as necessary, including preparation of pleadings, briefs, motions and other documents; appears before federal and state courts and administrative agencies.
 Drafts, analyzes, reviews and/or a pproves complex and routine ordinances, amendments to ordinances, resolutions, contracts, deeds, leases, development agreements, owner participation agreements, Memorandum of Understanding (MOU) and other legal documents and instruments.  Performs legal res earch and prepares complex and routine opinions considering the actions, powers, duties, functions and obligations of the City Council, City Officials, City departments and various agencies, boards and commissions.
 Acts as senior counsel in handling serious, controversial and complex legal matters.  Advises on personnel and employee relations matters; advises staff and elected officials on FPPC, government code 1090 and other conflict of interest questions. 415
Item # C25.
 Confers with and renders assistance to department heads in establishing policies by applying legal points and procedures; recommends changes in establishing departmental policies by applying legal points and procedures; recommends changes in policies and procedures to meet legal requirements.
 Assists in or prepares cases for administrative and judicial hearings and represents the City in such hearings.
 Represents the City Attorney at various City Council, board and commissions meetings and in court as assigned.
 Assists with interaction with outside counsel and other legal consultants.  Responds to citizen complaints and requests for information.  Provides supervision to subordinate staff, as assigned.  May assist with the preparation of the department budget.  Perform related duties as assigned.

QUALIFICATIONS

Knowledge of:
 Civil, administrative, and criminal procedure.
 Local government law which may include, but is not limited to, Public Records Act, Brown Act, conflicts of interest, public contracts, employment practices, land use & development, housing, CEQA, eminent domain, real estate, telecommunications, policies & procedures.  Pleading and practices and effective techniques in the presentation of court cases.  Judicial procedures and rules of evidence.
 Responsibilities and obligations of public officials and administrative agencies.  Principles and practices of government and gove rnment programs, including standards/best practices.
 Municipal government organization, structure and functional responsibilities.  Supervisory principles and methods, including p rogram development and implementation and work assignment, and employee selection, training, work evaluation, and discipline.

Ability to:
 Perform complex legal research, analyze complex problems, evaluate alternatives and make sound recommendations.
 Apply legal principles to determinations on individual cases, projects, and problems.  Investigate and analyze legal issues and proactively develop creative solutions that contemplate practical implications.
 Perform legal research and analysis.
 Write quality legal documents and memoranda.
 Communicate in a manner that is organized, clear, concise, thorough, accurate, persuasive, and with appropriate tone.
 Negotiate settlements and contracts.
 Exercise independent judgment, making decisions when appropriate and seeking guidance/direction when necessary.
 Maintain confidential information and to exercise discretion.  Use a computer and related software applications.
416
Item # C25.
 Establish, maintain, and foster positive and effective working relationships with those contacted in the course of work.
 Plan, organize, supervise, review, and evaluate varied legal activities and functions.  Train, motivate, and evaluate assigned staff.
 Assist in developing and implementing goals, objectives, policies, and procedures and work standards.
 Exercise independent judgment within general policy guidelines and legal parameters.  Establish and maintain effective working relationships with those contacted in the course of the work.
 Represent the City effectively in meeting with others.  Prepare clear, concise, and competent reports, correspondence and other written materials.

EDUCATION AND EXPERIENCE

Experience: Minimum of five years of responsible professional legal experience, which includes experience in municipal law.

Education: Juris Doctorate degree from an accredited law school.

LICENSE OR CERTIFICATE

 Active membership in the State Bar of California
 Possession and maintenance of a valid California Driver’s License is required.

SPECIAL REQUIREMENTS:

Essential duties require the following physical abilities and work environment.  Ability to work in a standard office environment
 Ability to attend night (evening) meetings
 Ability to travel independently to various locations within and outside of the City of Milpitas.

Approved by:

___________________________________________
City Manager Date

Human Resources Director Date

In compliance with the Americans with Disabilities Act, the City of Milpitas will provide reasonable accommodation to qualified individuals with disabilities and encourages both prospective and current employees to discuss potential accommodations with the Human Resources Department.

The City of Milpitas is an Equal Opportunity Employer.

417
Item # C25.

City of Milpitas
Effective:

DEPUTY CITY ATTORNEY Revised:

EEOC: Admin
FLSA: Exempt
Unit: Unrepresented
Physical: 1

DEFINITION

Under general direction, performs difficult and responsible civil , criminal, transactional, and administrative legal work and provides legal counsel to City staff, agencies, boards and commissions; performs other related legal work as assigned.

DISTINGUISHING CHARATERISTICS

This is a journey level classification that includes lit igation, contract negotiating and drafting, researching issues of municipal law, and providing advice to all City departments. Incumbents in this classification work on a variety of legal issues and performs related work as required.

This class is distin guished from the Assistant City Attorney by the level of difficulty and complexity of the work. The incumbent handles cases as assigned or as directed by the general policies of the City Attorney.

SUPERVISION RECEIVED AND EXERCISED
 Receives general direction from the City Attorney or designee  No supervision exercised. May provide lead work over lower level professional, paraprofessional, and support staff.

EXAMPLE OF DUTIES – This class specification represents the core area of responsibilities; specific position assignments will vary depending on the needs of the department.

 Perform legal research and prepare opinions on various legal problems for City departments, the City Council, and various boards and commissions.  Represents the City and its officers and employees in litigation as necessary, including the preparation of pleadings, briefs, motions, and other documents; appears before federal and state courts and administrative agencies.
 Prepare and draft ordinances, revisions of ordinances, resolutions, contracts, deeds, leases and other legal documents and instruments; review such documents and offer opinions as to legal acceptability when presented to the City for consideration by an outside agency.  Confers with and renders assistance to depart ment heads in establishing departmental policies by applying legal points and procedures; recommends changes in policies and procedures to meet legal requirements.
 Investigates claims and complaints against the City and may take or recommend appropriate action.
418
Item # C25.
 May attend meetings of City Council, Council Committees, Commissions, Boards, and Committees to advise on legal matters.
 Represents the City Attorney at various board and commission meetings and in court as assigned.
 May assist with planning and organizing activities of the City Attorney’s Office.  Represent the City in civil actions brought by or against the City.  Investigate claims and complaints by or against the City and recommend action to be taken.  Other duties of a similar nature and level as assigned.

QUALIFICATIONS

Knowledge of:

 Civil, criminal, and administrative procedure.
 Local government law which may include, but is not limited to, Public Records Act, Brown Act, conflicts of interest, public contracts, employment practices, land use, eminent domain, policies & procedures.
 Pleading and practices and effective techniques in the presentation of court cases.  Local rules of court and rules of evidence.
 Responsibilities and obligations of public officials and administrative agencies  Principles, methods and techniques of legal research and investigation.  Responsibilities and obligations of public officials and administrative agencies.  Municipal government organization, structure and functional responsibilities.

Ability to:

 Define issues, perform legal research, analyze problems, evaluate alternatives and mak e sound recommendations.
 Apply legal principles to determinations on individual cases, projects, and problems.  Investigate and analyze legal issues and proactively develop creative solutions that contemplate practical implications.
 Present statements of fact, law and argument clearly and logically.  Exercise sound, independent judgment within general policy guidelines and legal parameters.
 Interpret state and federal laws and constitutional provisions affecting municipal operations and conduct legal research as necessary to ascertain relevant law.  Establish and maintain effective working relationships.  Use a computer and related software applications.
 Represent the City effectively in hearings, courts of law and meetings with others.  Prepare clear, concise and competent resolutions, ordinances, contracts, leases, permits, reports, correspondence and other written materials.

419
Item # C25.

EDUCATION AND EXPERIENCE

 Two years of responsible professional legal experience including experience in municipal law; AND,
 Juris Doctorate degree from an accredited law school.

LICENSE OR CERTIFICATE

 Active membership in the State Bar of California.
 Possession and maintenance of a valid California Driver’s License is required.

SPECIAL REQUIREMENTS
Essential duties require the following physical abilities and work environment  Ability to work in a standard office environment
 Ability to attend night (evening) meetings
 Ability to travel independently to various locations within and outside the City of Milpitas

Approved by:

___________________________________________
City Manager Date

Human Resources Director Date

In compliance with the Americans with Disabilities Act, the City of Milpitas will provide reasonable accommodation to qualified individuals with disabilities and encourages both prospective and current employees to discuss potential accommodations with the Human Resources Department.

The City of Milpitas is an Equal Opportunity Employer.

420
Item # C25.

LEGAL ASSISTANT City of Milpitas
Effective:

EEOC: Admin
FLSA: Non-exempt
UNIT: Unrepresented
Physical: 1

DEFINITION
Under general supervision, performs difficult and responsible legal secretarial and administrative work involved in the conduct of the City Attorney's office. The Legal Assistant performs a variety of legal administrative assistant duties within the Office of the City Attorney; keeps complex legal files and calendars ; drafts, proofreads, and reviews legal materials to ensure conformance to standard legal and office style and accuracy, including accuracy of citations and code references; identifies applicable procedural rules and statutes; performs work related to a variety of legal matter s; serves as a contact person in answering inquiries and complaints, providing information related to the Office of the City Attorney. Performs related work as required.

DISTINGUISHING CHARACTERISTICS

This is a single position class with specialized legal administrative responsibility in a law office.

The Legal Assistant is distinguished from other classes in the administrative support series in that the incumbent provides responsible, confidential, administrative support services for the City Attorney. This classification provides office management and performs a variety of complex legal assistant assignments within broad procedural guidelines with minimal supervision and instruction and requires specialized knowledge of office management -related policies, procedures, and practices as well as applicable federal and state laws and regulations .

The classification involves working with individuals, activities , and issues with which the City Attorney is involved and requires daily contact with a cross -section of high-level government, community, and public and private officials, as well as individual members of the community.

The incumbent must be able to handle non -partisan confidential matters with a high level of judgment.

As a member of the City's uncl assified service, this is an "at -will" position and the incumbent serves at the discretion of the City Attorney. An incumbent in this position demonstrates strong ethical, professional, and service-oriented leadership and interpersonal skills.

SUPERVISION RECEIVED AND EXERCISED
 Supervision is provided by the City Attorney
 No supervision is exercised

EXAMPLES OF DUTIES - Duties may include, but are not limited to, the following:
421
Item # C25.

 Organizes and prepares complex legal files and calendars. Understands and independently calendars deadlines related to documents being filed, including both internal and statutory deadlines.

 Prepares, assembles, proofreads, and files a variety of documents, such as ordinances, resolutions, contracts, agreements, deeds, easements, complaints, pleadings, and other legal documents from copy, draft, dictation, or verbal or written instructions; proofreads ordinances, resolutions, briefs, real estate descriptions, and other materials for accuracy, completeness, and compliance with established standards; serves legal documents; prepares a semi-annual (or as needed) litigation report.

 Prepares and files legal documents and pleadings for litigation and administrative hearing matters, including proposed interrogatories and replies to interrogatories.

 Drafts legal papers relating to civil and criminal proceedings such as routine complaints, dismissals, releases, and other legal documents; prepares routine contracts, deeds of trust, and leases.

 Researches legal information and records from readily available sources and compiles information from a variety of sources; coordinates the gathering of information from various departments in the preparation of contracts and other legal documents; reviews certain legal documents to ensure necessary provisions are contained.

 Reads and routes incoming mail, including receipt of legal pleadings; independently composes standard responses to legal documents and correspondence on own initiative or from instructions.

 Organizes and maintains files for all legal documents, office records, and legal materials; retrieves records; calendars deadlines related to incoming legal documents; purges files as required

 Compiles and organizes agenda materials from files and other sources for City Attorney's use in providing legal assistance and in preparation of other legal documents and opinions.

 Receives and screens visitors and callers; refers them to the proper person as required; provides information to the public and to employees that require judgment and a good knowledge and interpretation of legal matters handled by the City Attorney's office.

Schedules appointments; responds to public inquiries, both on the telephone, through email or written correspondence, and in-person, and refers to proper staff members for more specific information as appropriate.

422
Item # C25.

 Transcribes recordings and word processes a variety of correspondence, memoranda, reports and documents from prior documents, rough copy or brief instructions; utilizes standard word processing, spreadsheet, and database applications; prepares agendas and may attend and take minutes of meetings of citizen, advisory, and administrative groups.

 Maintains multiple calendars; arranges meetings, appointments , and conferences; coordinates and makes travel arrangements.

 Provides administrative support to the City Attorney’s Office and maintains records of accounts payable for purchases and expenditures and serves as liaison to the Finance Department regarding department invoices; collects prepares and assembles all materials for City Attorney's budget.

 Assists in the audit and redaction of documents to be produced in response to a California Public Records Act or Discovery Request.

 Maintains general and confidential files and distributes correspondence and legal documents as appropriate; contacts department directors, members of the Council, public agencies and members of the public to obtain or transmit information for the City Attorney.

 Is familiar with and adheres to court rules, and required timeframes related to preparing and filing legal documents.

 Maintains strict confidentially of sensitive attorney-client and litigation information.

 Serves as backup to other administrative staff.

 Attends meetings and reports on the outcome(s).

 Assists with Public Records Act requests and other inquiries from the public.

 Performs special projects and related duties as assigned.

 May direct work of clerical assistants, interns or volunteers. May provide lead direction to support staff.

 Perform related duties as assigned.

423
Item # C25.

MINIMUM QUALIFICATIONS

Knowledge of:
 Microsoft Office suite products, including but not limited to Word, Excel, PowerPoint and Outlook
 Basic organization and function of municipal government, including the role of an elected City Council and appointed boards and commissions; functions and role of City Manager, City Attorney, and City operations;
 Correct English usage, spelling, punctuation, grammar and vocabulary;  Current legal and general office methods and technology  Legal terminology, pleadings, briefs, ordinances, resolutions, documents, and publications.
 Legal principles and practices, forms, and procedures required for a legal office work, procedures and documents
 Legal calendaring principles;
 Municipal or governmental functions and practices
 Federal, state and local court rules or how to access them.  Office methods, procedures and machines, including filing systems, reception and telephone techniques and letter and report writing;
 Office safety practices, procedures and standards;

Ability to:
 Perform difficult para-professional work independently  Effectively communicate orally and in writing;
 Effectively represent the City with governmental agencies, businesses and professional organizations and litigants
 Provide a high level of customer service to the public and City staff, in person and over the telephone
 Effectively manage calendars and appointment schedules  Establish and maintain effective working relationships including with the general public  Prepare correspondence without review, employ good judgment and make sound decisions within established policies and procedures;
 Use tact, discretion, and mature judgment in the handling of sensitive and confidential information
 Maintain records and prepare accurate and timely reports from statistical or legal information
 Type 45 words per minute on a computer keyboard
 Interpret, apply, and explain departmental policies and procedures  Research and compile a variety of legal matters and informational materials  Work independently under pressure, organize and prioritize work assignments with little or no supervision to simultaneously complete several projects

424
Item # C25.

EXPERIENCE AND EDUCATION

Education: Completion of High School or equivalent; and,

Experience: Three years of legal assistant work including one year of preparing and formatting complex legal documents such as pleadings, briefs, contracts, ordinances, resolutions, and other legal transactional documents. Experience wit h a municipality or public agency and an understanding of simple legal documents and Court procedures are desirable, but not required.

OR

Education: An Associate’s Degree from an accredited college in legal secretarial studies or related field; and,

Experience: One year of legal assistant work preparing and formatting complex legal documents, such as pleadings, briefs, contracts, ordinances, resolutions , and other legal transaction documents. Experience with a municipality or public agency and an und erstanding of simple legal documents and Court procedures are desirable, but not required.

LICENSE AND CERTIFICATE

Possession of or ability to obtain and maintain an appropriate, valid California Driver’s License.

SPECIAL REQUIREMENTS:

Essential duties require the following physical abilities and work environment.

Ability to work in a standard office environment, ability to attend night (evening) meetings, and ability to travel to various locations within and outside the City of Milpitas.

PHYSICAL REQUIREMENTS:
 Mobility and Dexterity: Positions in this class typically require stooping, kneeling, reaching, occasional standing, occasional walking, pushing, pulling, fingering, grasping, feeling (i.e. sense of touch), and repetitive motion.
 Lifting, Carrying, Pushing and Pulling -- Sedentary Work: Employees in this class exert up to 10 pounds of force occasionally and/or a negligible amount of force frequently or constantly to lift, carry, push, pull or otherwise move objects.  Vision: Positions in this class require the employee to have close visual acuity, with or without correction, to prepare and analyze data and figures, transcribe, view a computer screen, read, etc. Positions in this class also require employees to have depth perception in order to operate a motor vehicle.
 Hearing/Talking: Positions in this class require the employee to perceive the nature of sounds at normal speaking levels with or without correction, and have the ability to receive detailed information through oral communication. Positions in this class require the employee to express or exchange ideas by means of the spoken word.

425
Item # C25.

WORKING CONDITIONS:
 Office Work: Employees in this class will most often be working in an office setting.

Approved by:

___________________________________________
City Manager Date

Human Resources Director Date

In compliance with the Americans with Disabilities Act, the City of Milpitas will provide reasonable accommodation to qualified individuals with disabilities and encourages both prospective and current employees to discuss potential accommodations with the Human Resources Department.

The City of Milpitas is an Equal Opportunity Employer.
426
Item # C25.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Adopt a Resolution Approving Rental Rates for Public Spaces in City Hall (Staff Contact: Renee Lorentzen, Director of Recreation and Community Services, 408- 586-3409)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 6/21/2022
Recommendation: Adopt a resolution approving rental rates to be added to the Master Fee Schedule for the City Hall Rotunda and the City Hall City Council Chambers.

BACKGROUND:

At the June 7, 2022 City Council meeting, through Announcements, Mayor Tran requested and the City Council concurred by consensus, that staff work with the Boy Scouts on renting the City Council Chamber and submit a related fee waiver for use of the Chamber to the City Council for consideration. As part of responding to this request, it was discovered that rental rates for areas in and around City were no longer listed in the FY 2022-23 Master Fee Schedule, approved by Council on May 3, 2022. The last reference of the room rental rates was in the Master Fee Schedule in 2018. However, rules for renting the rotunda and Council Chambers are incorporated in the City’s Facility Use Rules and Regulations approved by City Council in 2016.

The City’s master fee schedule identifies fees for services and activities provided at the request of, or on behalf of, a single party as opposed to the public at large, including fees like program participation fees, facility rental fees, and administration fees.

ANALYSIS:

In an effort to update the Master Fee Schedule for Fiscal Year 2022-23, staff recommends adding the City Hall Rental Fees, which were inadvertently omitted from a prior schedule, and correcting a clerical error for the Recreation Transaction Fee.

City Hall Rental Fees
Staff is proposing to reinstate rental rates for the Veterans Plaza, Rotunda and City Council Chambers similar to the hourly rates charged in 2018. As part of the development of the FY 2023-24 Master Fee Scheduled, the rental rates will be aligned to the Council approved Recreation and Community Services Cost Recovery Policy.

City Hall Rotunda
Fee Description
Milpitas Schools,
Chamber, Gov. Agencies
Resident Non-
Profits
Milpitas
Residents
Non-
Residents
Application Fee $30 $30 $30 $30
Deposit (refundable) No Fee $500 $500 $500
Hourly Rental Rate (2hr min) No Fee $40 $80 $160
Staff/hour (Maintenance and/or IT) $50 per staff $50 per staff $50 per staff $50 per staff

City Hall City Council Chambers
Fee Description
Milpitas Schools,
Chamber, Gov. Agencies
Resident Non-
Profits
Milpitas
Residents
Non-
Residents
Application Fee $30 $30 $30 $30
Deposit (refundable) No Fee $500 $500 $500
Hourly Rental Rate (2hr min) No Fee $78 $260 $520
Staff/hour (Maintenance and/or IT) $50 per staff $50 per staff $50 per staff $50 per staff

427
Item # C26.

City Hall Veterans Plaza

Milpitas Schools,
Chamber, Gov. Agencies
Resident Non-
Profits
Milpitas
Residents
Non-
Residents
Application Fee $30 $30 $30 $30
Deposit (refundable) No Fee $500 $500 $500
Hourly Rental Rate (2hr min) No Fee $40 80 $160
Staff/hour (Maintenance and/or IT) $50 per staff $50 per staff $50 per staff $50 per staff

Recreation Transaction Fee
Staff recommends correcting a clerical error of this existing fee. The Recreation Transaction Fee offsets the City’s vendor related cost associated with transaction processing for all in-person transactions. The current range listed for this fee is $1- $3 per receipt. The range should be listed as $1- $5 per receipt.

POLICY ALTERNATIVE(S):

Alternative 1: Do not amend the FY 2022-23 Master Fee Schedule.

Pros: None.

Cons: City’s General Fund would have to partially or fully absorb costs for renting facilities at City Hall to the public and the recreation transaction fees.

Reason not recommended: Not amending the FY 2022-23 Master Fee Schedule as recommended is contrary to previous Council direction including adopted fiscal policies and the Recreation and Community Services Cost Recovery Policy.

FISCAL IMPACT:

Consistent with Recreation and Community Services Cost Recovery Policy, the recommended changes to the FY 2022-23 Master Fee Schedule, will fully or partially recover the City’s cost for the rental of City facilities and recreation transaction fees.

California Environmental Quality Act (CEQA):

The fees (charges) authorized by this Resolution are statutorily exempt from environmental review under Guideline 15273 of the California Environmental Quality Act (CEQA), which provides an exemption for the establishment or modification of charges by public agencies, which the public agency finds are for the purpose of meeting operating expenses.

RECOMMENDATION:

Adopt a resolution approving rental rates to be added to the Master Fee Schedule for the City Hall Rotunda and the City Hall City Council Chambers.

Attachment(s):

1. Draft Resolution

428
Item # C26.

RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS APPROVING NEW FEES TO THE MASTER FEE SCHEDULE 2022-23

WHEREAS, the City of Milpitas (the “City”) charges fees for licenses, permits, and various services provided by the City (collectively, the “Fees”); and

WHEREAS, the Fees are established to offset all, or portions of, the costs of providing the various services for which the Fees are collected; and

WHEREAS, on April 19, 2022, the City Council adopted Resolution Nr. 9142 approving the Fiscal Year 2022-23 Master Fee Schedule; and

WHEREAS, the City desires to accommodate requests from entities and individuals to rent the City Hall Rotunda, the City Hall Council Chambers, and the City Hall Veterans Plaza ; and

WHEREAS, the Fiscal Year 2022-23 Master Fee Schedule inadvertently includes the incorrect amount for the Recreation Transaction Fee due to a clerical error; and

WHEREAS, with the exception of those fees for services or facilities specifically listed in this Resolution, the City Council does not wish to repeal or amend fees set by previous resolution.

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

1. The City Council has considered the full record before it, which may include but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

2. The following City Hall room rental rates are approved:

City Hall Rotunda
Milpitas Schools,
Chamber, Gov. Agencies
Resident Non-
Profits
Milpitas
Residents
Non-
Residents
Application Fee $30 $30 $30 $30
Deposit
(refundable)
No Fee $500 $500 $500
Hourly Rental
Rate (2hr min)
No Fee $40 $80 $160
Staff/hour
(Maintenance
and/or IT)
$50 per staff $50 per staff $50 per staff $50 per staff

City Hall City Council Chambers
Milpitas Schools,
Chamber, Gov. Agencies
Resident Non-
Profits
Milpitas
Residents
Non-
Residents
Application Fee $30 $30 $30 $30
Deposit
(refundable)
No Fee $500 $500 $500
429
Item # C26.

Hourly Rental
Rate (2hr min)
No Fee $78 $260 $520
Staff/hour
(Maintenance
and/or IT)
$50 per staff $50 per staff $50 per staff $50 per staff

City Hall Veterans Plaza
Milpitas Schools,
Chamber, Gov. Agencies
Resident
Non-Profits
Milpitas
Residents
Non-
Residents
Application Fee $30 $30 $30 $30
Deposit
(refundable)
No Fee $500 $500 $500
Hourly Rental Rate
(2hr min)
No Fee $40 $80 $160
Staff/hour
(Maintenance
and/or IT)
$50 per staff $50 per staff $50 per staff $50 per staff

3. The following Recreation Transaction Fee is approved:
$1 – 5$ per transaction receipt.

4. Staff is authorized to incorporate the aforementioned rental rates into the City of Milpitas Facility Manual, Indoor and Outdoor Facilities, and other documents of the City, as appropriate.

5. The fees and use charges shall go into effect immediately.

PASSED AND ADOPTED this _____ day of ____________________, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST:

APPROVED:
______________________________________ ________________________________ Wendy Wood, City Clerk Mayor Rich Tran

APPROVED AS TO FORM:
430
Item # C26.
______________________________________
Michael Mutalipassi, City Attorney

431
Item # C26.

CITY OF MILPITAS

AGENDA REPORT
(AR)

Item Title: Approve and Authorize the City Manager to Execute Amendment No. 2 with Avolve Software for the Maintenance Contract Extension for ProjectDox (Staff Contact:

Daniel Nam, IT Director, 408-586-2712; and Chris Schroeder, Purchasing Agent, 408-586-3161)
Category: Leadership and Support Services
Meeting Date: 6/21/2022
Recommendation: Approve and Authorize the City Manager to Execute Amendment No. 2 with Avolve Software to extend the maintenance agreement for one (1) additional year and increase the existing contract amount of $369,731.07 by $29,906.55 for a total contract amount of $399,237.62

BACKGROUND:

In 2017, the Council approved the purchase of Avolve ProjectDox software to help transition the City’s traditional paper-based plan review process to advanced web-based electronic plan review system.

ProjectDox allows staff to digitally review plans and significantly reduce process time which benefits both staff and customers. This software solution allows developers to electronically submit and monitor development projects as they go through the city’s review for building, zoning, and planning compliance. The system also allows city departments and other agencies to review projects simultaneously. This helps resolving conflicting reviewer commentary and reduce review time, all the while ensuring an efficient and transparent review process.

Electronic plan submittal using ProjectDox reduced the traditional plan processing time by 20 to 50 percent by reducing or eliminating the number of physical trips to and from City Hall and by making these services available 24/7.

ANALYSIS:

The City entered into the initial agreement with the contractor which included the purchase of the software and maintenance support from June 28, 2017, through June 28, 2018, with four (4) one-year options to extend the contract for a total amount of $334,656.20.

Initial: June 28, 2017 – June 27, 2018 $216,630.00
Option 1: June 28, 2018 – June 27, 2019 $29,506.55
Option 2: June 28, 2019 – June 27, 2020 $29,506.55
Option 3: June 28, 2020 – June 27, 2021 $29,506.55
Option 4: June 28, 2021 – June 27, 2022 $29,506.55
---------------------------------------------------------------------------- Contract Total $334,656.20

Amendment No. 1 – April 2, 2019 $35,074.87
Amendment No. 2 – June 2022 $29,506.55
---------------------------------------------------------------------------- Amendment Total $64,581.42

Contract Total $399,237.62

Staff recommends amending the contract to add an additional year for the period from June 28, 2022 through June 27, 2023 for the maximum compensation of $29,506.55, bringing the total contract amount to $399,237.62. 432
Item # C27.

POLICY ALTERNATIVE(S):

Alternative 1: Not approve the contract extension
Pros: None
Cons: City will lose the critical support services for the electronic plan review system.

Reason for Not Recommending: The City’s electronic plan review system is complex and is integrated with other enterprise systems. Without the maintenance agreement extension, the City will lose the technical support from the vendor, and will not be able to upgrade the system to implement additional features and security updates.

FISCAL IMPACT:

CIP 3434: Permitting Technology Improvement fund is set aside to fund any improvements needed to the permitting automation system. The maintenance agreement can be funded from the remaining balance of $314,925, as of 06/16/2022. Funding source for CP3434 comes from the Permit Automation Fund.

California Environmental Quality Act (CEQA):

By the definition provided in the CEQA Guidelines Section 15378, this action does not qualify as a “project” for the purpose of CEQA as this action has no potential to result in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

RECOMMENDATION:

Approve and Authorize the City Manager to Execute Amendment No. 2 with Avolve Software to extend the maintenance agreement for one (1) additional year and increase the existing contract amount of $369,731.07 by $29,906.55 for a total contract amount of $399,237.62

Attachment(s):

1. Amendment No. 2

2. Exhibit A - Quotation

433
Item # C27.

AMENDMENT NO . 2 TO THE AGREEMENT
WITH

AVOLVE SOFTWARE CORPORATION
FOR

PROJECTDOX ELECTRONIC PLAN CHECK SOFTWARE

This Amendment is entered into as of April 2 , 201 9, (Effective Date) by and between the City of Milpitas, a municipal corporation of the State of California (hereafter referred to as " City ") and Avolve Software Corporation , a California corporation (hereafter referred to as " Contractor "). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Amendment No. 2 .

RECITALS

WHEREAS, on June 20, 2017 the Milpitas City Council adopted resolution 8681 , making cooperative purchase findings and authorizing the Purch asing Agent to enter into a cooperative purchasing agreement with Avolve Software Corporation for the purchase of Avolve ProjectDox software from Insight Public Sector ; and

WHEREAS, on June 28, 2017 , the City entered into a written agreement (hereinafter , the “Contract”) with Contractor through a U.S. Communities cooperative purchasing program , which provided for ProjectDox S oftware and ePlan Maintenance Services to be purchased for the term of June 28, 2017 through June 27, 2018 , with four (4) one -year options to extend through June 22, 2022 , for the amount of $334,656.20 ; and

WHEREAS, on June 27, 2018 the parties executed Option No. 1 to the Contract for a term of June 28, 2018 to June 27, 2019 , and a maximum compensation of $29,506.55; and

WHEREAS, on April 2,2019 the parties executed Amendment No. 1 to the Contract to increase the Agreement amount by $35,074.87 to add a ProjectDox Test System and Assurance Services ; and

WHEREAS, on June 27, 2019 the parties executed Option No. 2 to the Contract for a term of June 28, 2019 to June 27, 2020, and a maximum compensation of $29,506.55; and

WHEREAS, on April 10, 2020 the parties executed Option No. 3 to the Contract for a term of June 28, 202 0 to June 27, 202 1, and a maximum compensation of $ 29,506.55; and

WHEREAS, on June 20, 2021 the parties executed Option No. 4 to the Contract for a term of June 28, 202 1 to June 27, 202 2, and a maximum compensation of $29,506. 00 ; and

WHEREAS, the parties now desire to amend the Contract to extend the contract to June 27, 2023 and a maximum compensation of $29,506.00; 434
Item # C27.

NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, the parties agree to amend th e Agreement as follows:

1. The Agreement compensation amou nt is increased by $29,506.00 for the purchase of a ProjectDox Test System and Assurance Services as quoted by Avolve Software Corporation in the attached EXHIBIT A, the reby increasing the total value of the Agreement to a new not -to -exceed amount of $399,237.07.

2. All other provisions of the Agreement shall remain in full force and effect.

435
Item # C27.

SIGNATURE PAGE FOR AMMENDMENT NO. 2

BETWEEN THE CITY OF MILPITAS

AND AVOLVE SOFTWARE CORPORATION

APPROVED BY:

CITY OF MILPITAS

Approved By:

Steven G. McHarris, City Manager

Effective Date

Approved As To Form:

Michael Mualipassi, City Attorney

Approved As To Scope:

Lauren Lai, CPA, MPA
Finance Director / Risk Manager

Approved As To Content:

Daniel Nam
Director of Information Technology

AVOLVE SOFTWARE

CORPORATION

Signature

Name

Title

Date

436
Item # C27.

EXHIBIT A

[AVOLVE QUOTATION ON FOLLOWING PAGE ]
437
Item # C27.

HTTP://WWW.INSIGHT.COM